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Sask. government appealling judge's decision to allow amended court action in pronoun case

A protester holds a poster at a rally in Saskatoon on Aug. 27, 2023, against policies around sexual education and pronoun use in schools that had been announced that week. Those policies became law on Friday, Oct. 20, 2023. (Pratyush Dayal/CBC - image credit)
A protester holds a poster at a rally in Saskatoon on Aug. 27, 2023, against policies around sexual education and pronoun use in schools that had been announced that week. Those policies became law on Friday, Oct. 20, 2023. (Pratyush Dayal/CBC - image credit)

The Saskatchewan government is appealing a February ruling that allowed an amended court action against the province's pronoun consent law to proceed.

CBC News accessed court documents the province filed with the Saskatchewan Court of Appeal, seeking to appeal the Feb. 16 decision of Court of King's Bench Justice Michael Megaw.

In that decision, Justice Michael Megaw said the applicant UR Pride, a LGBTQ group in Regina, should be allowed to make its case surrounding the Charter of Rights and Freedoms, even though the province invoked the notwithstanding clause when creating the law.

"UR Pride has recognized the claim here is in somewhat uncharted territory," Megaw wrote.

The Parents' Bill of Rights, a new law passed in October, requires parental consent before a child under 16 can use a different gender-related name or pronoun at school.

The province originally announced the new rules as a policy change without making a law. UR Pride then launched a legal challenge against that policy. The province then passed a law and invoked the notwithstanding clause — a rarely used measure that lets governments override certain Charter rights for five years — to allow the law to stand even if it violated sections 2, 7 and 15 of Canada's Charter of Rights and Freedoms.

The province then applied to have UR Pride's challenge dismissed.

Megaw's decision allowed UR Pride to alter its legal action to target that new law, instead of the policy that preceded it, and amend the challenge to say that the law violates Section 12 of the Charter, which protects Canadians against cruel and unusual treatment or punishment. The province did not name Section 12 when it invoked the notwithstanding clause.

Now, the government is appealing Megaw's decision and asking UR Pride's challenge proceedings to be stayed until an appeal is concluded.

The appeal asserts that, since the Saskatchewan government rescinded the original policy and the law is protected by the notwithstanding clause, the law will still stand regardless of what the court finds in the challenge.

"The answer given by the Court would have no concrete legal effects," the document read.

Egale Canada, which is representing UR Pride as co-counsel, released a statement in response to the appeal Wednesday.

"The Saskatchewan Court of King's Bench has already found that the Saskatchewan government's pronoun policy (now enacted into legislation) will inflict irreparable harm on vulnerable young people. In response to that ruling, the government took the unprecedented step of using the notwithstanding clause to limit the rights of gender diverse students," said Bennett Jensen, the legal director at Egale Canada, in the statement.

"The Court has again found in our favour — that our case must proceed. We remain focused on our priority of protecting trans and gender diverse youth and seeking to end the harm being inflicted upon them as quickly as possible."

The documents also argue that Megaw failed to correctly apply the law by allowing "litigation routes which avoid the actions taken by the legislature," essentially arguing that UR Pride is trying to use the Section 12 challenge to circumnavigate the protections built into the law.

"Failing to consider and apply relevant factors in deciding whether the allegation pursuant to [Section] 12 was scandalous, frivolous, vexatious or otherwise an abuse of process," the appeal says.

Saskatchewan Minister of Justice and Attorney General Bronwyn Eyre said the appeal is of "great importance both to Saskatchewan and to the country."

"Potentially, the court making a declaration about the charter despite the notwithstanding clause having been invoked… was one of the legal concerns raised and which will be raised now going forward at the Court of Appeal," she told reporters Wednesday.

The appeal says the province intends to make its application to a judge on May 8.