Sask. government's consideration of notwithstanding clause in parental consent policy does not impact current litigation: lawyer

If necessary, the Saskatchewan government said it will consider invoking the notwithstanding clause to protect the parental consent policy that Premier Scott Moe plans to legislate this fall. However, lawyers said the ‘musings’ do not impact how they plan to proceed with current litigation.

UR Pride is challenging constitutionality of the policy that requires parental consent for students under the age of 16 to change their names or pronouns at school.

The group is seeking an injunction to have the policy paused until a judge can rule if it is constitutional.

“The only way that this case goes away is if the government withdraws the policy. As long as the policy that it announced on Aug. 22 is on the books and is enforced, we have a case,” said Adam Goldenberg, a partner at McCarthy Tétrault LLP and one of the lawyers representing UR Pride.

UR Pride argues the policy violates two sections of the Charter of Rights and Freedoms: Section 7 related to personal security and Section 15 related to equality rights.

Goldenberg argues early considerations around the notwithstanding clause suggest the Saskatchewan government knows its policy is in violation of the charter.

“You don’t talk about invoking the notwithstanding clause unless you’ve got some idea that the policy or the law that you’ve introduced is not going to withstand scrutiny by a court of law and by a judge under the charter,” Goldenberg said.

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“These are kids’ lives that are at stake and kids’ wellbeing that’s at stake. In order for the notwithstanding clause to have any impact whatsoever in a case like this, the government would have to decide that the policy was unconstitutional and it needed the notwithstanding clause to put it in effect.”

For a government to invoke the notwithstanding clause, it would have to attach it to a piece of legislation that would then be voted on in the legislature.

The notwithstanding clause allows governments to pass laws that violate certain charter rights for up to five years. Every five years, it must be reintroduced and voted on again.

“It is used very rarely,” said Daniel Westlake, assistant professor of political science at the University of Saskatchewan. “Part of that is because if you’re going to use the notwithstanding clause as a government, you’re basically telling the public we’re okay with violating charter rights and that’s a hard thing to justify.”

The government does not have to wait for a court ruling before invoking the clause, according to Westlake. However, he said a government’s decision to preemptively invoke the clause could be viewed as controversial.

Premier Moe said the notwithstanding clause is just one option the government could look at using if it comes down to it. However, the province has not made any final decisions.

A judge will hear arguments in the injunction application on Tuesday at the Court of King’s Bench in Regina.

In the meantime, school divisions are expected to implement the policy.

Quintin Robertson, director of education for the Good Spirit School Division, said the policy does not differ much from the way teachers already handled situations.

If a child is struggling with anything, the school’s first point of contact has always been the parents, he said.

“If it happens to be that the child’s at risk because of a relationship with the family, then we have to take different steps. But that rarely happens.”

“We’re not trying to change who the children are. We’re accepting them for who they are and supporting them. If they happen to want to be referred to by a different pronoun or a different name, we are supporting them in having those conversations with their parents.”

Robertson said divisions are focused on inclusion in an effort to make the classroom safe for all students and families, and part of that includes being more transparent.

In light of the parental consent policy, Robertson said there have been growing misconceptions around what takes place inside the classroom.

Earlier this week, the school division posted to social media to debunk common myths it has been hearing from members of the community.

“We’re not promoting any ideology. We’re just ensuring all kids, all staff and all families are welcome,” he said.

The Saskatchewan government has been working with school divisions to help implement the policy.