Brandon Harder
Regina Leader-Post
Saskatchewan’s highest court heard submissions from a long list of third parties this week during an appeal hearing related to Saskatchewan’s pronoun consent law.
The main parties are the government of Saskatchewan and a non-profit organization called UR Pride Centre for Sexuality and Gender Diversity. In the appeal, they are at odds over whether a lower court’s judge made errors in his ruling that allowed UR Pride’s court case against the government’s law to move ahead in an amended fashion.
Known as the Parents’ Bill of Rights, or Bill 137, the law requires students under the age of 16 to obtain parental or guardian consent for school staff to “use the pupil’s new gender-related preferred name or gender identity.”
The law can operate regardless of whether it violates constitutional rights to equality, as well as life liberty and security of the person, because it uses what’s known as the “notwithstanding clause.”
At the heart of the appeal heard Monday and Tuesday is the question of whether, following the use of the clause, the court can make a declaration about whether the law violates those rights.
UR Pride says yes. The Saskatchewan government says no.
The third parties, known in legal terms as “interveners,” are not directly involved in the case but made submissions they felt might assist the Saskatchewan Court of Appeal in rendering its decision.
They included:
- British Columbia Civil Liberties Association
- Canadian Civil Liberties Association
- Advocates’ Society
- Amnesty International
- Justice for Children and Youth
- John Howard Society of Saskatchewan
- Saskatchewan Federation of Labour, Canadian Union of Public Employees and Canadian Teachers’ Federation
- Women’s Legal Education and Action Fund (LEAF)
- Trial Lawyers Association of British Columbia
- The Government of New Brunswick
- The Government of Alberta
Of those parties, the two provincial governments favoured an interpretation of the law akin to the Government of Saskatchewan.
New Brunswick argued that judicial review of laws using the notwithstanding clause could have a negative impact on its ability to meet its obligations regarding language rights. Alberta suggested that, once the clause is used, the only thing a court can really declare is whether the clause was properly invoked, as that determines the law’s ultimate constitutionality. There would be no legal reason to include analysis about individual rights, and doing so could be “irresponsible” if it confused people about the law’s ultimate constitutionality, Alberta explained.
The remaining interveners took positions more akin to UR Pride’s view of the issue, favouring an interpretation of the law that would leave the court with the ability to weigh in on whether there has been a violation of rights.
The court heard submissions about the potential erosion of civil liberties and the importance of an informed public. Statements were made about “unwritten” constitutional principles favouring judicial review of laws, and the importance of protecting minorities.
It was stated that Canada must comply with international law, which holds that there may be some “remedy” available to those whose rights are violated. The government’s position could result in a breach of international law, it was argued.
Judges heard that the rights of children should be considered in the court’s decision, as children are entitled to “enhanced state protection.”
The court was asked to consider what effect a declaration that Bill 137 violates rights could have on disciplinary actions taken against school staffers who refuse to adhere to the law.
Submissions were made about how the court can play a “dignity enhancing” role, and that an acknowledgement of rights violations has value, especially to members of “marginalized” groups.
Judges were also reminded about the importance of access to justice for Canadians.
Each intervener was given a specific allotment of time in which to make submissions.
Following the interveners, the Government of Saskatchewan was given time to reply.
Once lawyers had finished, Chief Justice Robert Leurer addressed them all, offering thanks.
“It won’t surprise you to hear me say we will be reserving our decision,” he said.
It is not clear when a decision will be rendered.
