Sask premier says school pronoun policy based on wide consultation, but judge says there's no evidence of that
Premier Scott Moe says he'll recall legislature Oct. 10 to invoke notwithstanding clause
Saskatchewan Premier Scott Moe is reiterating his claim that his government's school pronoun policy was based on extensive consultations with parents, teachers and others, but a judge says there's no evidence those occurred.
Moe's comments Friday came one day after Regina Court of King's Bench Justice Michael Megaw placed an injunction on the controversial policy, which would require parental consent for all students under 16 to change their names or pronouns at school.
Moe has pledged to reconvene the legislature Oct. 10 to invoke the notwithstanding clause and overrule Megaw's decision.
Speaking at a Saskatoon leisure centre Friday morning, Moe said the policy was based on "multiple conversations various government MLAs have had with parents, educators, others, and myself included as an MLA."
Megaw painted a different picture in his ruling.
"There is no indication...that the [Education] Ministry discussed this new Policy with any potential interested parties such as teachers, parents, or students," he wrote.
"There is further no indication any expert assistance was enlisted to assist in determining the effect of the Policy. Finally, there is no indication the Ministry sought any legal assistance to determine the constitutionality of the Policy with respect to any potential considerations regarding the Charter."
Moe was asked why the government didn't provide evidence of any consultations or research.
"The case hasn't been heard yet. That evidence would ultimately be forthcoming, I would presume. I'm not a lawyer," he said.
"I don't know the period of time legal counsel had to introduce evidence at what was an injunction hearing, not the main court case. I'll leave what happens in the courtroom to the lawyers."
Moe said the notwithstanding clause is necessary to "provide clarity" to families, teachers and school divisions on the issue. He said this is about "the rights of a parent to ensure they are involved in their child's decision.
One constitutional expert says the legal battle could be far from over.
"There are very motivated parties on both sides," said Eric Adams, a professor in the faculty of law at the University of Alberta.
"The importance of the governmental policy is outweighed by the public interest of not exposing that minority of students … to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity," stated the decision.
Adams said that if the government invokes the notwithstanding clause as planned, that won't be the end of the fight.
The other side can then seek another injunction if they feel the government made constitutional errors.
"I suspect there will be continuing legal opposition. They may or may not seek a second injunction," said Adam Goldenberg, a partner with McCarthy Tétrault and legal counsel for UR Pride, which filed the initial injunction request.
If that second injunction request proves successful, the government can then appeal it, he said.
Obtaining a second injunction could prove difficult, but not impossible, he said. Canadian courts have taken a "hands off approach" to notwithstanding clause use in the past, he said. In fact, courts have never overruled provincial governments' use of the clause, as long as the rules were followed, he said.
Even in a 1988 case where the Quebec government used the notwithstanding clause on every bill it was passing that session, the Supreme Court of Canada sided with the government.
However, "that was a long time ago," and none of those justices remain on the Supreme Court, Adams said.
Goldenberg said the government policy cannot be enforced, for now. He said that's good news for Saskatchewan students.
"As of today, gender-diverse young people in Saskatchewan who have a trusted adult at school whom they want to respect them and recognize for their gender identity can have that trusted adult … refer to them by their chosen name, their chosen pronouns, even if they haven't come out to their parents so don't have parental consent," Goldenberg said.
"That's a good thing and that's the reality in Saskatchewan."
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