Premier Scott Moe reconfirmed on Friday that his government will be invoking the notwithstanding clause to push forward the pronouns policy legislation, requiring students 16 years or younger to receive parental consent to use a preferred name or pronoun at school.
“Today, I asked the Speaker to recall the Legislative Assembly on Tuesday, October 10 to pass legislation to protect parents’ rights,” Moe said in a statement.
Earlier in the day on Thursday, a Regina judge granted an interim injunction, temporarily halting the implementation of the policy.
The notwithstanding clause is essentially an ‘override of power’, specifically connected to Charter Rights, according to University of Saskatchewan assistant law professor Sarah Burningham.
Burningham said the clause allows governments to enact laws regardless of whether they violate certain human rights, but noted that not every right within the Canadian Charter of Rights and Freedoms can be overridden.
Once the clause is invoked, it immunizes the law from Charter review.
The clause also prevents claimants from taking the government to court over the law.
Daniel Westlake is an assistant professor of political studies at the University of Saskatchewan and spoke with Global News a few weeks ago when Moe first threatened the use of the notwithstanding clause.
He said when a government implements a notwithstanding clause they will need to justify it to the public due to it only having a lifespan of five years.
“You can re-pass the law with the notwithstanding clause as many times as you want, but you have to keep doing that every five years,” Westlake said.
“Part of the challenge with using the notwithstanding clause is you are kind of telling your voters that you want to pass this law even though it might violate a Charter right, and the Charter tends to be reasonably popular with Canadian voters.”
He said in the case of the Sask. Party, he believes that the party has such a hold on the province that he doesn’t see it shifting its position.
“I think this is one of the challenges in Saskatchewan, is that this could shift some voters, but the Sask. Party has such a lead in terms of polls and in terms of previous election results that it’s unlikely that one issue would cost them the government.”
He said a lot would need to happen for the Sask Party to lose the next election, but noted that a lot could still happen.
“Nothing is kind of written in stone here.”
He said moves from the province will likely hinge on the public perception of this particular issue, and different parties will attempt to frame this discussion differently.
“Does this get framed in terms of being a Charter violation? Does this get framed in terms of parental rights? And which of those sets of ideas and which of those kinds of arguments does the public latch on to?”
Moe claimed the right that the notwithstanding clause will protect — that is not protected by the Charter — is the right for parental inclusion in the classroom.
“As the rights that were being included under the Charter were being discussed, there were other rights that were identified as well that were not included under the Charter. It was also identified that at some point in the future, there could be a collision of these Charter protected rights and these other rights that were not included that are important to Saskatchewan residents and Canadian residents,” Moe said.
The Federal Government noted that the notwithstanding clause shouldn’t be used lightly in this case.
“We are aware of the Saskatchewan government’s stated intention to use the Notwithstanding Clause,” said Justice Minister Arif Virani.
“We note that the government is choosing to do this despite today’s injunction, which should have given them pause. A judge agreed that what the government is doing may cause irreparable harm to some of its most vulnerable young people. Just as important, they are acting before a court has had the opportunity to review their proposed policy for its constitutionality. Violating individual rights should not be a decision taken lightly.”
The Green Party said that the Charter needs to be protected, adding that provinces shouldn’t be allowed to ‘toy’ with it.
“It’s high time the federal government ramped up its protection of the Charter and found ways to clearly signal to provincial politicians that the Charter isn’t something to be toyed with by invoking the notwithstanding clause in such abusive ways,” said leader Jonathan Pedneault.
The Canadian Civil Liberties Association said the clause shouldn’t be used as a weapon.
“The notwithstanding clause is the nuclear option. Using it to destroy the rights of students is unconscionable. The notwithstanding clause is not a weapon to be used to strip anyone of their rights, let alone vulnerable and marginalized students.”
On Friday, Moe said that the policy will provide clarity to parents and school divisions about what to expect in the classroom and the policy can’t wait until spring.
“What we find of paramount importance is to provide clarity to parents, to families, to school divisions, and ultimately, to educators across our province. This will provide that clarity.”
Moe said that recalling the legislature and passing the bill lines up with what they have been promising for a number of weeks.
He said he couldn’t speak to the specifics of the legislation yet and that residents will have to wait for it to be tabled on the floor at the legislature.
“There is an opportunity and a short period of time here for the government to look at what supports we have in place for students that may find themselves in a challenging situation whether that may be with their family or community dynamics.”
Moe said his government will keep the mental health challenges of children in mind when approaching the legislation.
He said they will consider expanding rapid-access counselling services to youth in communities and offering more mental health training to educators.
— With files from The Canadian Press.
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