Sask. Parental Bill of Rights to be introduced, notwithstanding clause invoked

The Saskatchewan government will introduce Bill 137, the Parental Bill of Rights, on Thursday morning and invoke the notwithstanding clause.

Premier Scott Moe called the legislature back early to introduce the new legislation before the fall sitting starts on Oct. 25.

The clause can only override certain sections of the Canadian Charter of Rights and Freedoms that deal with fundamental freedoms, legal rights and equality rights. It can’t be used to override democratic rights. Once invoked, the notwithstanding clause prevents any judicial review of the legislation in question.

The bill will be public once it is tabled in the legislature. It is expected to closely resemble a policy introduced in August regarding name and pronoun use in schools.

The government required schools to receive parental permission if a student under 16 wished to be addressed by their chosen name or pronoun. Then-minister of Education Dustin Duncan said the policy does not apply to nicknames or shortened versions of names.

“I think that we’re talking when children are looking to change their name associated with a change in their gender. If a child prefers to go by a shortened version of what their given name is, I think that’s different than what this policy is speaking to,” Duncan said.

Shortly after the policy was introduced, UR Pride Centre for Sexuality and Gender Diversity filed a lawsuit at the Court of King’s Bench in Regina aiming to have the policy stopped. Lawyers representing the organization argued for an injunction to have the policy paused pending a judicial review.

King’s Bench Justice Michael Megaw granted the injunction on Sept. 28.

Hours after the decision was released, Moe announced he planned to use the notwithstanding clause.

Moe told reporters on Tuesday his government called an emergency session to introduce and eventually pass the bill in order to protect the policy from court challenges.

“With respect to the notwithstanding clause itself, that is part of the Charter and it was put in place so that elected members in the future would be able to determine which of those rights ultimately would be in place moving forward. And that is ultimately why it is being utilized here,” Moe said.

Moe said the province’s 27 school divisions were not in sync on policies for name and pronoun changes prior to the policy.

“There’s a number of school divisions that have very similar, if not virtually identical policies in place today. What we are saying is that all of the school divisions across the province are going to mirror that policy at the conclusion of this session.”

A rally outside the legislature on Tuesday saw hundreds voice opposition to the policy and the use of the clause.

Moe and Minister of Education Jeremy Cockrill contend that the changes are being driven by feedback from parents who have contacted the government members both formally and informally.

“We’ve heard from parents that have different views of this legislation and the notwithstanding clause in this policy. But all agree on one thing and that is they don’t want to see less involvement of the parents in the education system,” Moe said.

Moe said government MLAs have been asked by constituents to move forward with the legislation.

“This is very much a government that is being responsive to parents from across this province, of which we’re fortunate to have a large caucus that represents many areas from corner to corner to corner in the province, putting forward a piece of legislation that largely parents that have reached out to us are supportive of.”

When asked why the government did not consult transgender youth, gay-straight alliances, teachers or students before introducing the policy, Moe pushed back.

“There is a number of MLAs that have spoken not only to parents but to others as well. Those discussions, those emails, that correspondence that happens with the MLA through their MLA office is not going to be discussed in detail in the public.”

When asked how many children the policy will affect, Cockrill said Wednesday, “whether the number is one or 10 or 100, the real question here is ensuring that if there is a child that feels like they’re in potential harm, we want to make sure supports are available.”

“We look forward to working with school divisions and their implementation plan to prevent that harm.”

Governments keep using the notwithstanding clause — what is it?

Saskatchewan’s proposed use of the notwithstanding clause to shield its school pronoun policy from court challenges is just the latest example of politicians threatening to use this controversial clause. CBC Calgary’s Rob Brown delves into what it was meant to do.

Saskatchewan’s Children’s Advocate has called for the policy to be changed.

“We agree it’s best for parents to be involved in significant decisions of their children. That’s a worthy aspect of the policy,” Lisa Broda said. “However it has to uphold the children’s rights and not effectively veto their rights, because these are human rights that we all have.”

When asked about the advocate’s analysis, Moe said Tuesday, “that’s her opinion.”

In his decision, Justice Megaw wrote that until there can be a full hearing, “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.”

Moe called the decision “judicial overreach.”

In response, the Canadian Bar Association took issue with Moe’s comments.

“The role of protecting the rights and freedoms from government overreach under our system of government falls to the courts. Statements that cast doubt on the independence and the role of the judiciary erode the public’s trust in the legal system and in our democratic institutions,” said CBA President John Stefaniuk.

Motion proposes 40 hours to debate bill

On Tuesday, Government House Leader Jeremy Harrison put forward a motion to have MLAs debate the new bill for 40 hours over a 10-day period. Members are required to debate bills for a maximum of 20 hours which is usually spread across several weeks during the spring sitting.

Harrison said doubling the debate time would allow members the chance to “fully canvas the issues and give them full opportunity to debate the bill.”

Opposition House Leader Nicole Sarauer disagreed, saying the bill should have been introduced in the fall sitting and followed regular procedure.

That “would have then resulted in months of scrutiny from the public. Instead, we’re seeing the government calling the special sitting and rule changes that will result in days of scrutiny rather than the typical months. We oppose that. We think that this should have the scrutiny that it deserves.”

The government can move ahead with its motion which would see MLAs sit this Friday and Saturday and all of next week including the weekend.