Sask. court hears arguments from province, UR Pride in pronoun law appeal

The Saskatchewan Government is in the province's highest court fighting to prevent a Court of King’s Bench judge from determining if its Parents' Bill of Rights actually violates the Charter.

In August 2023, the government announced a policy requiring students under 16 years of age to have parental permission before they change their pronouns or names in school.

LGBTQ2S+ advocates then requested and were granted a court injunction which halted the use of the policy.

In response, the Sask Party government enacted the use of the notwithstanding clause into Bill C-37, better known as the Parents’ Bill of Rights in attempt to stop the court challenge.

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In February, Justice Michael Megaw ruled UR Pride should still get the chance to have the court review the law's impacts under the Charter of Rights and Freedoms.

Megaw's decision would allow UR Pride and the government to present all their evidence and arguments in court, although the invocation of Section 33 of the Charter, also known as the notwithstanding clause, means a judge could not strike it down.

The government is making the case that its use of Section 33 means that since the court has no power to strike the law down, it should not be allowed to review whether the law violates the Charter.

Three Arguments

The government’s appeal relied on three main arguments:

There was an error of law for allowing the challenge to proceed, the issue is moot because of the use of the notwithstanding clause and UR Pride is abusing the judicial process.

Government counsel believed Justice Megaw made an error of law in allowing UR Pride to amend its application to include a constitutional challenge.

“Jurisdiction of the court is removed when the notwithstanding clause in invoked,” lawyer Milad Alishahi argued in court Monday. “The ability of the court completely to deal with the question [whether a law violates a charter provision] doesn’t exist.”

The province also believes the challenge is moot because of the use of the clause.

“The learning judge made an error of law in failing to find the declaration sought to find Sections 7 and 15 [of the Charter of Rights and Freedoms] raised in the issue,” said government lawyer Bennet Misskey. “To determine whether a matter is moot, it is necessary to assess what practical remedies are available to both parties.”

Court of Appeal Justice Georgina Jackson challenged Misskey’s comment.

“Would it have been better for the learn judge not to have passed on the issue of jurisdiction and focused on the issue of mootness?” she asked.

“Certainly,” Misskey replied. “Had the court found they had jurisdiction to issue some sort of declaration it was incumbent to then address the question of mootness.”

“By deferring the issue, it almost renders the question of mootness itself in a certain way,” he added.

Finally, lawyers say UR Pride is abusing the court process in trying to hold the government to account.

“It’s such a different case,” Deron Kuski said. “They are saying they want a decision that will hold the government to account.”

Kuski added he believes it is not up to the court to allow the process.

“The court should not concern itself with the issue of accountability,” he said. “Public accountability comes at the ballot box, not from the judiciary.”

UR Pride on defense

For over a year, UR Pride and multiple other advocate groups have been on the offensive in trying to halt the pronoun policies included in the Parents’ Bill of Rights.

But now, they are defending the decision to allow their connotational challenge.

“The issue of this case from day zero has been whether this law is constitutional,” said Adam Goldenberg, co-counsel for UR Pride. “I have real concerns with the suggestion its abusive and improper for a party challenging the constitutionality of a law to seek the determination whether the law is.”

“The government has taken the position the effect of section 33 is unaffected by the rights of the groups in question,” Chief Justice Robert Leurer said. “Are being asked to decide an issue on a factual pattern?”

“No one is questioning the legislative policy in this case,” Goldenberg said. “You can’t look at which rights are being overridden and whether it was a wise or unwise legislative choice.”

“As long as the full requirements are met, the law operates,” he added. “None of that is being disputed in this case.”

Goldenberg went on to submit there is a real need to inform the Saskatchewan electorate and elected officials of the provisions which the government has sought to infringe with the use of the notwithstanding clause.

“The purpose of every charter claim is ultimately to educate the legislatures who have the power to change the law of their constitutional obligations,” he said. “None of that is improper. None of that is abusive.”

Setting the precedent

The looming appeal decision stands to set the precedent for similar cases across the country.

“The court has an important role when the government chooses to violate the charter rights of young people or any part of the population,” said UR Pride co-counsel and Director of Legal for Egale Canada Bennett Jensen.

Both the provinces of New Brunswick and Alberta have enacted similar pronoun policy laws and were granted intervener status in this case.

Representatives from both provinces made submissions Monday in support of the Sask Party government’s position.

Legal battles in each province are also expected in the near future.

Sask. Minister of Justice and Attorney General Bronwyn Eyre asserted the government’s support for parental rights.

“It is important to include parents in these crucial decisions,” she told reporters at a media conference in Saskatoon Monday. “We’ve always been clear we’ll use every tool at our disposal to do that.”

“The notwithstanding clause is an integral part of the Charter of Rights [and Freedoms] and was long fought for … as a means for a balance between the legislative and judicial [branches],” Eyre added.

Jensen responded by saying it is disappointing to see the Saskatchewan government continue to defend policies he says target the province’s most vulnerable.

“When political leaders are telling young people it’s not okay to be themselves, that it’s not okay to be different at school, that has a devastating effect on young people,” he said. “The fact the policy has continued to be in effect this whole time continues to cause real harm across the population.”

More arguments in support of UR Pride’s challenge will continue Tuesday.

-With files from Rory MacLean