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Attorney General and Justice Minister Bronwyn Eyre says the government “respectfully disagrees” with a decision made by a Court of King’s Bench judge to allow an amended court action aimed at the province’s pronoun consent law to proceed.
A recent decision by Justice Michael Megaw allows amendments to a legal action brought by the UR Pride Centre for Sexuality and Diversity. The amendments take aim at the province’s approach to the use of preferred names and pronouns in schools and allows for UR Pride to add a challenge that the law violates Section 12 of the Charter, which protects Canadians against cruel and unusual treatment or punishment.
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Passed in October 2023, Bill 137 mandates children under 16 obtain parental or guardian consent for school staff to “use the pupil’s new gender-related preferred name or gender identity.”
Eyre says when a provincial legislature invokes the notwithstanding clause that “in effect, finishes the issue.”
Speaking last week, Eyre said private lawyers in her camp are concerned about the possible precedent set by the courts “making a declaration” despite her government using the notwithstanding clause.
The government has sought an appeal of the Feb. 16 decision from Megaw and has filed an application with the Saskatchewan Court of Appeal for permission to do so. It is also applying for Megaw’s decision to be stayed until the conclusion of the appeal, if it is to be granted.
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To pass the bill, the government invoked the notwithstanding clause specifically on sections 2, 7 and 15 of Canada’s Charter of Rights and Freedoms. Megaw’s decision allowed for the UR Pride to add a challenge that the law violates Section 12 of the Charter.
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“The feeling is that there are important issues constitutional and otherwise that are validly considerable,” said Eyre.
Eyre has reached out to other attorneys general to see if they want to intervene in the matter.
“I think the concern, legally and constitutionally, is around the very technical issue of issuing a declaration, potentially, on the legal arguments, despite the fact that the notwithstanding clause has been invoked,” she said.
Opposition justice critic Nicole Sarauer posited that the Attorney General was concerned about the optics of the law and what happens in five years when the notwithstanding clause sunsets.
“I think what they’re afraid of, frankly, is they’re scared of what the judge will say in the future; that this is a Charter violation on the rights of vulnerable children,” said Sarauer.
“This is such a preliminary application,” she said “To say that the judge did anything that would infringe on the ability of a legislature to enact a notwithstanding clause is quite frankly wrong.”
As for the precedent it could set, Sarauer again said that this was early days in the proceedings.
“We’re seeing right now, a government that’s willing to fight to tooth and nail in the courts, spend only God knows how much money, taxpayer dollars, to be able to trample on the rights of vulnerable kids,” she said.
What’s more, Sarauer said the actual ruling from the judge clearly said the notwithstanding clause was “validly enacted.”
“But the judiciary in the future has the ability to decide whether or not to make a decision as to whether it was constitutional,” she said.
— with files from Brandon Harder
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