Appeal judges rule court can decide whether Sask. pronoun consent law violates rights

Ottawa Citizen

5 days ago

In a split-decision, the Saskatchewan Court of Appeal (SKCA) has ruled a lower court can determine whether the provincial government's pronoun consent law violates certain constitutional rights.
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Released Monday, the decision concerns an appeal brought by the government, which submits that a lower-court judge made errors in allowing a court case brought by the UR Pride Centre for Sexuality and Gender Diversity to continue in an amended form.
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The legal action, launched by the non-profit organization in August of 2023, sought to halt the implementation of what was then a government policy and have it declared unconstitutional.
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The policy was later replaced by a law known as the Parents' Bill of Rights (PBR), or Bill 137, which requires students under the age of 16 to obtain parental or guardian consent for school staff to 'use the pupil's new gender-related preferred name or gender identity.'
In his Feb. 16, 2024 decision, Court of King's Bench Justice Michael Megaw granted amendments, which allowed UR Pride to target the law that followed the policy, as well as to tack on a further constitutional challenge.
The PBR uses what's known as the notwithstanding clause, which allows it to stand regardless of whether it violates certain sections of the Charter of Rights and Freedoms, namely guarantees to life, liberty and personal security (Section 7), as well as equality (Section 15(1)).
Private lawyers from the firm MLT Aikins representing the government argued in September 2024 that, given the invocation of the notwithstanding clause, the court no longer has jurisdiction to weigh in on whether the law violates sections of the Charter listed in the clause's invocation. They argued the case should have been dismissed for being moot and suggested the addition of a further constitutional challenge amounted to an attempt to get around the government's lawful actions and was an abuse of process.
UR Pride disputed the government's positions and argued there is nothing precluding the court from declaring whether the law violates certain constitutional rights.
The majority decision, written by SKCA Chief Justice Robert Leurer and representing the opinion of four of five judges who ruled on the case, dismissed the government's appeal in all but one area. The decision says the portions of UR Pride's action seeking to have the policy, which preceded the law, declared unconstitutional 'must be struck for mootness.'
But the majority ruled the Court of King's bench has the jurisdiction to decide whether the PBR (specifically, what is now Section 197.4 of the Education Act and concerns 'Consent for change to gender identity') violates sections 7 and 15(1) of the Charter and to issue a declaration to that end.
Further, the SKCA majority decision concludes UR Pride may also seek a declaration that the section of law is of 'no force and effect' based on a violation of Section 12 of the Charter, which protects Canadians from cruel and unusual treatment or punishment. The PBR does not operate notwithstanding this section — this is the additional challenge the government argued was an abuse of process.
The majority decision is careful to note that it is not concluding such violations have occurred. Further, it states that while the lower court has the power to examine whether the law violates sections 7 and 15(1), 'there is no finding contained in this judgement that it will or should do so.'
The dissenting decision, held by and written by SKCA Justice Neal Caldwell, concluded he would grant an order declaring that 'the courts are without jurisdiction to determine or declare' whether the provincial law violates sections 7 and 15 of the Charter. Further he would deny UR Pride the ability to amend its action to 'claim declaratory relief' in respect to Section 12.
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