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amnesty international says sask. use of notwithstanding clause 'not a licence to discriminate'
“the notwithstanding clause is not a licence to discriminate against children and youth and avoid the scrutiny of the courts."
aug 2 2024
3 minute read
ketty nivyabandi, secretary general of amnesty international canada, speaks during a press conference on parliament hill in ottawa, wednesday, sept. 28, 2022.
sean kilpatrick
/
the canadian press
as almost a dozen interveners prepare to speak on the upcoming bill 137 appeal, amnesty international canada (aic) is staking out its position.
though the parents’ bill of rights (bill 137) was implemented as law in saskatchewan through use of the notwithstanding clause (section 33 of the canadian charter), aic wants to argue that the clause “must align with canada’s obligation to uphold the right to an effective remedy.”
as the organization stated on friday, it believes “the notwithstanding clause does not preclude a person whose rights have been violated from seeking or receiving legal redress.”
by definition, section 33 allows parliament or a provincial legislature to override certain sections of the canadian charter of rights and freedoms pertaining to fundamental freedoms, legal and equality rights.
however, the clause cannot be used to override democratic rights.
in february, court of king’s bench justice michael megaw filed a decision allowing for an amendment to legal action brought forward by the ur pride centre for sexuality and diversity. ur pride is challenging the province’s policy on use of preferred names and pronouns in schools through bill 137 and subsequent amendments to the education act.
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the government of saskatchewan is now appealing megaw’s ruling, which permitted the amended court challenge to proceed.
bill 137 states that saskatchewan students under 16 years old have to obtain parental or guardian consent for school staff, including teachers, to “use the pupil’s new gender-related preferred name or gender identity.”
ur pride has argued that while the use of the notwithstanding clause will allow the law to operate regardless of whether it violates certain charter sections, it does not protect the law from judicial review.
“the notwithstanding clause is not a licence to discriminate against children and youth and avoid the scrutiny of the courts,” said ketty nivyabandi, secretary general of aic’s english-speaking section, in a news release. “we thank ur pride for championing the rights of 2slgbtqqia+ children in saskatchewan who have been endangered by the government’s discriminatory pronoun policy.”
aic and 10 other groups have successfully applied for intervener status in the province’s appeal of the ur pride court challenge, including the governments of new brunswick and alberta, both of which have adopted similar pronoun policies to saskatchewan.
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the other interveners are: advocates’ society, british columbia civil liberties association, canadian civil liberties association (ccla), john howard society of saskatchewan, justice for children and youth, trial lawyers association of british columbia, the women’s legal education and action fund inc., and a joint application from the saskatchewan federation of labour (sfl), canadian union of public employees (cupe) and canadian teachers’ federation (ctf).
the ccla commented this week on a recent decision from the supreme court, which “affirms that governments can be held liable for charter damages.”
harini sivalingam, lawyer and director of the equality program at ccla, said in an email that the matter in saskatchewan “raises different legal issues about constitutional remedies in the context of the invocation of notwithstanding clause …
“our arguments in the sk case on bill 137 is that use of the notwithstanding clause doesn’t prevent the court from issuing a declaration that bill 137 violates charter rights and that is an important function of the court that enhances democratic dialogue.”
fallout from the passing of the bill has been visible this year as pride organizations across saskatchewan effectively banned any saskatchewan party mlas that voted in favour of the legislation from pride-related celebrations.
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the matter will be heard on sept. 23, 2024 at regina’s court of king’s bench.
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