Brandon Harder
Regina Leader-Post
Saskatchewan’s government is asking the Supreme Court of Canada for permission to appeal a ruling that allowed a court case targeting the province’s pronoun consent law to proceed.
The government did this through filing documents, dated Sept. 12, which argue that errors were made by judges of the Saskatchewan Court of Appeal (SKCA), who were the last to weigh in on the case.
The situation raises “issues of national and public importance,” the documents state.
However, it is not yet clear whether the nation’s highest court will grant permission for the province to argue its appeal.
Background
The case dates back to August of 2023 when the UR Pride Centre for Sexuality and Gender Diversity took the Saskatchewan government to court over what was then a policy, arguing it was unconstitutional.
The policy was later replaced by a law known as the Parents’ Bill of Rights (PBR), or Bill 137, which 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 Saskatchewan government used what’s known as the notwithstanding clause to allow the law to stand regardless of whether it violates certain sections within Canada’s Charter of Rights and Freedoms.
The provincial government’s latest move comes after an Aug. 11 split decision by a five-judge SKCA panel. Among other things, the majority of the panel (four out of five) concluded that a judge can still consider whether the law violates rights despite the government’s employment of the notwithstanding clause.
National Importance
Bill 137 uses the clause to operate in spite of Charter sections which guarantee life, liberty and personal security (Section 7) as well as equality (Section 15(1)). Those specific sections were listed in the text of the PBR.
According to government documents, it’s a question of national importance to determine if the clause stops a judge from reviewing and declaring whether the law violates the listed Charter sections.
In its ruling, the SKCA majority found that the notwithstanding clause does not prevent such actions, which the Saskatchewan government asserts was an error.
After the PBR was brought in, UR Pride amended its case to argue the law also violates Section 12 of the Charter, which protects Canadians from cruel and unusual treatment or punishment (and is notably not listed within the text of the PBR).
The government effectively viewed this as an attempt at an end-run around the law’s use of the notwithstanding clause.
The government’s documents also suggest it’s a question of national importance whether amendments “aimed at evading” a valid use of the notwithstanding clause are “inconsistent with the proper purpose of constitutional litigation?”
The SKCA ruled that adding the Section 12 challenge by UR Pride was not an abuse of process, which the government also asserts was an error.
