Saskatchewan appeals constitutional challenge of parental rights bill

Saskatchewan Justice Minister Bronwyn Eyre stated that a successful constitutional challenge to the parental rights bill could diminish the effectiveness of the notwithstanding clause, but confirmed her government's commitment to defending Bill 137 by utilizing all means available.

Saskatchewan appeals constitutional challenge of parental rights bill
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The province of Saskatchewan will not go down quietly after filing an appeal that could jeopardize parental rights legislation if unsuccessful.

Bill 137, the Parents’ Bill of Rights Act, mandates that children under 16 years of age cannot change their name, use different pronouns, or affirm their 'gender identity' without parental consent. It also bans third-party sex education organizations from classrooms, such as Planned Parenthood.

The University of Regina Pride Centre for Sexuality and Gender Diversity (UR Pride) claimed this policy would violate children’s right to life, liberty and security of the person (Charter section 7) and children’s right to equality (Charter section 15) in a previous application to provincial court.

On September 28, the Saskatchewan Court of King’s Bench granted UR Pride an injunction to suspend Bill 137 until a court hearing takes place. On January 10 and 11, the court heard competing arguments from the LGBTQ lobby and the province on how the case would proceed.

On February 16, Justice Michael Megaw ruled the applicant UR Pride should be allowed to make the constitutional challenge. 

Saskatchewan’s government hopes its motion to appeal this ruling is successful, with further deliberations stayed until their hearing on May 8.

The appeal states that the application by Egale Canada, on behalf of UR Pride, is a “scandalous, frivolous, vexatious or otherwise an abuse of process.”

Egale Canada called the legislation an “unprecedented and disgraceful step.”

“The Saskatchewan Court of King's Bench has already found that the Saskatchewan government's pronoun policy [now enacted into legislation] will inflict irreparable harm on vulnerable young people,” reads their statement at the time. 

On Wednesday, Saskatchewan Minister of Justice Bronwyn Eyre referred to the ruling as a “very technical legal issue” that could impact the scope and usefulness of the notwithstanding clause moving forward.

The Parents’ Bill of Rights Act became law following the invocation of the notwithstanding clause (section 33 of the Charter), stating that Charter section 2 (freedom of expression, association, conscience, religion, and peaceful assembly), sections 7 and 15 does not apply to the contested legislation. 

According to Eyre, the applicant’s challenge is “a legal long shot.” 

“Certainly, we feel the legal threshold for cruel and unusual punishment is very, very high,” she said.

Nevertheless, the province claims the law will stand regardless of the challenge as it is protected by section 33 of the Charter, reported The Western Standard. Eyre told reporters her government would use “every tool at its disposal” to ensure the law stands. 

However, the language of Bill 137 does not shield it from this constitutional challenge under section 12 of the Charter, insisting that the legislation subjects students to “cruel and unusual treatment or punishment” in schools, contends Egale Canada.

Although the group claimed it violated sections 7 and 15 of the Charter, they amended their position to reference section 12 following the invocation of the clause. 

"The legislation passed by the Saskatchewan government continues to cause irreparable harm to gender-diverse young people in Saskatchewan,” reads a statement by Egale Canada. “It also violates their rights to equality, to be free from cruel and unusual treatment and to the security of the person. We are grateful that we will have the opportunity to continue our fight against it.”

Section 33 grants Parliament and provincial legislatures power to override, through the passage of law, certain sections of the Charter for renewable five-year terms.

On October 13, Leger published a poll where nearly two-thirds (63%) of respondents said they want to be informed by school administrators if their child wants to use a different pronoun or change their name. 

About half (46%) of Canadians also support invoking the notwithstanding clause to ensure parental consent is legally enshrined on matters of ‘gender identity’.

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