The Saskatchewan Court of Appeal says the the focus of the appeal is the interpretation and application of the notwithstanding clause.
Only one organization was denied intervener status
Alexander Quon · CBC News
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The Saskatchewan Court of Appeal has granted 11 organizations intervener status for the provincial government’s appeal of a decision that allowed an amended court action against the province’s pronoun consent law.
The Parents’ Bill of Rights requires parental consent before a child under the age of 16 can use a different gender-related name or pronoun at school.
Court of King’s Bench Justice Michael Megaw ruled that UR Pride, a 2SLGBTQ+ group group in Regina, should be allowed to make its case regarding the Charter of Rights and Freedoms, even though the province invoked Section 33 of the Charter — commonly known as the notwithstanding clause — when creating the law.
The decision by the Saskatchewan Court of Appeal effectively decides which parties are allowed to make arguments for, or against, the Saskatchewan government’s appeal.
In a decision issued last week, leave to intervene was granted to the following:
- The attorneys general for New Brunswick and Alberta.
- Advocacy groups including The Advocates’ Society, Amnesty International Canadian Section, British Columbia Civil Liberties Association, Canadian Civil Liberties Association, John Howard Society of Saskatchewan, Justice for Children and Youth, and Women’s Legal Education and Action Fund Inc.
- A joint application from public sector unions including Saskatchewan Federation of Labour, Canadian Union of Public Employees and Canadian Teachers’ Federation.
- Trial Lawyers Association of British Columbia.
The Court of Appeal has described the focus of the appeal as the interpretation and application of the notwithstanding clause.
As a result, the court ruled the provinces of New Brunswick and Alberta have a “direct interest” in the subject matter and outcome of this appeal.
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Saskatchewan’s Ministry of Education has released copies of 18 letters sent to the province encouraging it to develop a policy addressing pronoun use in schools.
The nine other organizations were granted intervener status as the Court of Appeal believes their involvement will assist the court without expanding the scope of the appeal.
Bennett Jensen, co-counsel for UR Pride and director of legal at Egale Canada, welcomed the numerous interveners.
In a statement, Jensen said the appeal isn’t just about the rights of the 2SLGBTQ+ community but is also about the Saskatchewan government’s attempt to “bypass the courts.”
“That should alarm anyone who cares about the rule of law, the role of Canada’s independent judiciary and the protection of minority rights under our Constitution,” said Jensen.
Single intervener rejected
Only Our Duty Canada, an advocacy group that represents parents whose children are “captured by gender ideation,” was denied intervener status.
The group’s inclusion was contested by UR Pride and rejected by the court as its submission only referred to the underlying litigation and not the constitutional issues raised by Saskatchewan in its appeal.
The organization’s filings made no mention of the notwithstanding clause, the court highlighted.
“For all these reasons, [Our Duty Canada’s] intervention would serve no proper purpose,” wrote the court.
In a statement, Our Duty Canada said it had hoped to intervene because it disputes positions put forward by UR Pride and Egale Canada.
“Our focus is on child safeguarding, a task which we believe is best left to parents except where situation-specific facts suggest otherwise,” Karin Litzcke of Our Duty Canada wrote in a statement.
Winding path to appeal
Saskatchewan passed its Parents’ Bill of Rights in October 2023.
The province originally announced the rules as a policy change in the education system. That resulted in UR Pride launching a legal challenge against the policy.
The province then passed its Parents’ Bill of Rights, invoking the notwithstanding clause in the bill itself. The clause is rarely used and allows governments to override certain Charter rights for a period of five years.
Saskatchewan chose to invoke the notwithstanding clause on sections applying to freedom of expression, freedom of life, liberty and security of the person, and equality rights.
The province then applied to have UR Pride’s challenge dismissed.
Megaw’s decision allowed UR Pride to alter its legal action to target that new law, instead of the policy that preceded it, and amend the challenge to say that the law violates Section 12 of the Charter, which protects Canadians against cruel and unusual treatment or punishment. The province did not name Section 12 when it invoked the notwithstanding clause.
The province’s appeal of Megaw’s decision asserts that, since the Saskatchewan government rescinded the original policy and the law is protected by the notwithstanding clause, the law will still stand regardless of what the court finds in the challenge.
The Saskatchewan Court of Appeal has received a request for a panel of five judges to hear the proceedings but a decision has yet to be made. Most appeal court cases are heard by a panel of three judges.
The appeal is set to be heard on Sept. 23.
ABOUT THE AUTHOR
Alexander Quon has been a reporter with CBC Saskatchewan since 2021 and is happy to be back working in his hometown of Regina after half a decade in Atlantic Canada. He has previously worked with the CBC News investigative unit in Nova Scotia and Global News in Halifax. Alexander specializes in municipal political coverage and data-reporting. He can be reached at: alexander.quon@cbc.ca.
