Federal Justice Minister Arif Virani has taken to social media to criticize the Saskatchewan government’s decision to use the notwithstanding clause to override a court injunction to pause its pronoun policy.
The Saskatchewan government announced on Aug. 22 that schools would need to seek the consent of parents of children under 16 who want to change their pronouns. The policy would also allow parents to opt their children out of sexual health classes.
Mr. Virani’s post indicated he believes the policy, which is scheduled to take effect on Oct. 10, would hurt vulnerable individuals.
“We are aware of the Saskatchewan government’s stated intention to use the notwithstanding clause,” he said on X, formerly Twitter.
“We note that the government is choosing to do this despite today’s injunction which should have given them pause. A judge agreed that what the government is doing may cause irreparable harm to some of its most vulnerable young people.”
Mr. Virani did not indicate whether the federal government would get involved in the situation. He did, however, criticize the Saskatchewan government in the social media post, indicating he saw the pronoun policy as a violation of rights.
“Just as important, they are acting before a court has had the opportunity to review their proposed policy for its constitutionality,” he said. “Violating individual rights should not be a decision taken lightly.”
Earlier this year, the federal Conservatives and the Bloc Québécois argued that it’s up to the provinces to decide how to use the notwithstanding clause.
Court Challenge
A court challenge to the Saskatchewan policy was filed by UR Pride Centre for Sexuality and Gender Diversity, a peer-to-peer support group. On Sept. 28, the Saskatchewan Court of King’s Bench allowed an injunction to the policy.In the written decision published by CBC News, Justice M.T. Megaw said he believed the policy needed to be paused until a court could determine the issue.
“On the whole of the evidence, I am satisfied that those individuals affected by this Policy, youth under the age of 16 who are unable to have their name, pronouns, gender diversity, or gender identity, observed in the school will suffer irreparable harm,” Justice Megaw wrote in the decision.
He added that the Saskatchewan government is not entitled to a “free pass at this stage of the inquiry.”
Justice Megaw said the protection of youth surpassed the interest of the government before a “full and complete hearing into the constitutionality” of the policy.
The Saskatchewan Teachers’ Federation and the provincial Advocate for Children and Youth, Lisa Broda, have expressed some concern about the impact the policy will have on students.
“We agree with the government’s desire to place a high importance on the involvement of parents and guardians in education,” said Ms. Broda in a news release.
“However, this objective can be achieved without imposing such strict rules around consent, which could result in a violation of a young person’s rights under provincial, constitutional, and international human rights laws.”
An Angus Reid poll conducted in August found that 78 percent of people across Canada believe parents should be informed if their children want to change their identity. That number was 86 percent in Saskatchewan.
‘Extremely Dismayed’
Following the court decision, Premier Scott Moe announced on X that he was recalling the legislature and his government would use the notwithstanding clause in the Canadian Constitution to put its policy into effect.“Our government is extremely dismayed by the judicial overreach of the court blocking implementation of the Parental Inclusion and Consent Policy—a policy which has the strong support of a majority of Saskatchewan residents, in particular, Saskatchewan parents,” he said.
“Our government will take action to ensure the rights of Saskatchewan parents are protected and that this policy is implemented by recalling the Legislative Assembly and using the notwithstanding clause of the Canadian constitution to pass legislation to protect parental rights.”
This is not the first time Saskatchewan has used the notwithstanding clause, according to researchers.
The province used it in the 1980s to protect back-to-work legislation after a Saskatchewan court of appeal found the legislation interfered with the charter’s freedom of association.
At the time, the government was appealing the court decision and the Supreme Court of Canada upheld the province’s view that the legislation did not violate the Charter right.
The notwithstanding clause has been invoked about seven times since 2015 when the Liberals were elected to power, according to a Canadian Press report.
