The non-profit organization challenging the Saskatchewan government’s pronoun consent law is questioning suggestions that the judge who allowed the case to go forward made mistakes in doing so.
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No.
In short, that word represents the UR Pride Centre for Sexuality and Gender Diversity’s position towards what is commonly referred to as the Saskatchewan government’s pronoun consent law.
Unsurprisingly, it also represents the nonprofit’s position on suggestions that a judge made certain errors in his decision to allow a court case against the law to proceed.
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UR Pride filed the case against the government in August 2023.
The province is appealing the February 16 decision by the Court of Justice of the King. Michael Megaw, who allowed amendments to the case, now highlights Saskatchewan’s law that requires students under 16 to obtain parental or guardian consent for school staff to “use the student’s new preferred gender name or identity.”
In the latest development in the matter, UR Pride has filed its own written arguments, which respond to and refute the arguments presented by the government in its appeal.
The nonprofit said the appeal raises questions about whether Megaw made mistakes in three areas of its decision.
First, by allowing UR Pride to make modifications to its original legal action. Second, by determining that the government’s use of the notwithstanding clause does not “eliminate” the court’s jurisdiction to determine whether the Parents’ Bill of Rights violates certain sections of the Charter of Rights and Freedoms. And third, by declining to determine the issue of “impertinence” at this stage of the proceedings.
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“The answer to each of these questions is ‘no,’ reads UR Pride’s written argument, technically called a factum, dated June 28.
The aforementioned amendments, granted by Megaw in February, allowed UR Pride to target PBR, rather than the now-rescinded policy that preceded it, and to add a constitutional challenge regarding a section of the Charter that the use of the notwithstanding clause in the law does not protect it from – that being the section that protects Canadians from cruel and unusual punishment.
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The government viewed the additional constitutional challenge as a kind of evasion of the protections built into the law.
If such a challenge “had merit,” UR Pride would have filed it at the beginning of the case, the government argued.
The nonprofit’s document says Megaw found “nothing inappropriate or inadequate” in its approach.
“The government has not identified any palpable and widespread error in these findings.”
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He goes on to claim that the government is simply “re-litigating a discretionary decision it is not happy with.”
Furthermore, UR Pride argues that while the use of the no-objection clause will allow PBR to operate regardless of whether or not it violates certain sections of the Charter (the right to equality, as well as life, liberty, and security of the person), it does not protect the law from judicial review. Nor does it prevent the court from declaring any such violation it might find, the nonprofit argues.
The law’s protection through the no-objection clause expires after five years. UR Pride hopes a court will declare the law unconstitutional, so that when the five-year period ends, it will no longer be in effect.
The government previously held that the entire case was moot, following the rescission of the policy that had initially been the subject of its appeal. On appeal, the government contends that Megaw erred in failing to determine whether the case was moot and should be heard independently of its lack of relevance.
“There is no basis for interfering with the learned trial judge’s exercise of discretion by deferring the question of mootness until after hearing the original application,” UR Pride’s brief reads.
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Megaw acted within its jurisdiction to postpone the decision until the case had been argued on its merits, and its ruling on the matter deserves the deference of the Saskatchewan Court of Appeal, UR Pride argues.
The nonprofit’s brief, which runs to about 40 pages, devotes much of its length to arguing in depth its final positions and questioning those of the government. These include references to past cases that UR Pride considers relevant and an analysis of the text of the Charter and Constitution.
An appeal hearing is expected to take place in September, at which time attorneys for both sides in the case will be able to present oral arguments to support the written submissions already made.
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