Sask. premier 'jumping the gun' with turn to notwithstanding clause for pronoun policy: expert

Saskatchewan's government is moving at an unprecedented speed to invoke the notwithstanding clause, according to experts. 

The government intends to use the tool to cement its new policy on pronouns and names into place. In August, it announced that all youth under the age of 16 will have to get parental consent to use their chosen name and pronouns at school.  

Premier Scott Moe has said the policy is about parental rights and inclusion, while critics say the policy violates children's rights and could put trans and non-binary children at risk. 

Last week, Justice Michael Megaw said the policy cannot be implemented or enforced until the court assesses whether it violates constitutional rights and rules on its legitimacy. 

He wrote that "the importance of the governmental policy is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity."

In response to the injunction, Moe announced that he will use the notwithstanding clause to override the court. 

WATCH | Sask. premier doubles down on school pronoun policy, bypassing courts:

Sask. premier doubles down on school pronoun policy, bypassing courts

1 year ago

Duration 2:04

Saskatchewan Premier Scott Moe is doubling down on his promise to use the notwithstanding clause to enact his government's school pronoun policy, even after a judge granted an injunction halting it. Critics say he's ignoring real harm that could be done to students.

But that's not how the notwithstanding provision was intended to be used, according to Kerri Froc, who is an associate professor of constitutional law at the University of New Brunswick. 

"It's jumping the gun," Froc said.

"The fact that the notwithstanding clause is potentially going to be invoked for an interim order, even before all the evidence is presented by both sides before the government has a chance to really put forward its case, is rather extraordinary." 

Typically an 'option of very last resort'

The notwithstanding clause is Section 33 of the Charter of Rights and Freedoms. It allows the government to enact laws that are deemed unconstitutional and override certain charter rights, such as equality rights, for five years at a time. 

According to Froc, the provision was created to make sure people's rights were protected if legislators felt like non-elected judges missed the mark in their ruling.

For example, she said former Sask. Premier Allan Blakeney — who was in power as details of the Constitution were agreed upon — expressed concern that judges were going to hinder progressive social welfare legislation.

But the clause wasn't supposed to be used lightly. 

LISTEN | The notwithstanding clause, explained – and how it may stack up to Sask. school policy:

The Sunday Magazine11:49The notwithstanding clause, explained – and how it may stack up to Sask. school policy

On Thursday, Saskatchewan Premier Scott Moe announced he'll use the notwithstanding clause to override a judge's ruling that the provincial government's school naming and pronoun policy should be paused. University of Ottawa law professor Carissima Mathen speaks with Rebecca Zandbergen to explain how this clause can be used to override certain Charter rights, recent attempts to invoke it, and how the move may fare in this case.

"The founders of our Constitution really meant to flag for the public that the government is purporting to override constitutional rights and it was meant to be a nuclear option — an option of very last resort after the public had been consulted," Froc said. 

"But as we've seen in recent years, it's been bandied about by various populist governments really to thumb their nose at the Charter rather than governments and legislatures having a different perspective than the courts on the rights involved." 

Once it's in place, the notwithstanding clause prevents judicial review of the legislation in question.

Froc said the federal government could potentially intervene in Saskatchewan's decision to legislate this policy. There's a very old provision in the Constitution that says that the federal government could decide to not allow provincial legislation to be enacted, she said. 

However, she said certain constitutional law experts debate whether that power is still considered an active part of the Constitution. 

She also said that power should be considered with caution because the use of it in this circumstance could spark a "constitutional crisis." That's because the notwithstanding clause is entrenched in the Charter and, when used as intended, it is "meant to ensure that there can be diversity across the country in terms of how we live." 

Saskatchewan has only turned to the notwithstanding clause, Section  33 of the Charter, two other times in the last 35 years, said Jim Farney, who is a director and associate professor at the University of Regina's Johnson Shoyama Graduate School of Public Policy.

"This is the kind of most proactive use, if you will, of Section 33 — not waiting for the courts in the appeal process to work out, but using Section 33 very quickly," Farney said. 

"It certainly is saying that they, on the face of it, are not willing to wait or willing to take the risk to see if [it will] stand up to constitutional challenge."

The court hearing for the matter is currently scheduled for November, although Premier Moe said he intends to recall the legislature early on Oct. 10 to "pass legislation to protect parents' rights" — and use the notwithstanding clause to override the judicial injunction.