Premier Scott Moe intends to use notwithstanding clause to override courts on controversial policy
The Saskatchewan government is expected to introduce a bill Tuesday afternoon to invoke the notwithstanding clause — part of an effort to fast track its controversial school pronoun policy.
The policy would mandate school officials to inform parents if a student under 16 wanted to change their name or pronouns at school.
The government will likely get its way, but nothing is likely to change overnight, said Gordon Barnhart, former lieutenant governor and clerk of the Saskatchewan legislature.
He said it could take at least a week to clear all the legislative hurdles, and that the changes won't necessarily take immediate effect in schools.
"The present government has a majority in the legislature, so that's a given right there, but in terms of any legislation, be it this one or any other piece of legislation, there's a process," Barnhart said.
Last month, a Regina judge placed an injunction on the policy.
The judge said there was no evidence of research or meaningful consultation with parents, students or teachers. The judge said a full court hearing needs to occur before the policy can be implemented.
That hearing was scheduled for November. But Premier Scott Moe has recalled the legislature early to use the notwithstanding clause to override the court ruling.
The notwithstanding clause is a provision that allows governments to override certain Charter rights for up to five years when passing legislation.
The clause can only override certain sections of the charter that deal with fundamental freedoms, legal rights and equality rights. It can't be used to override democratic rights. Once invoked, the notwithstanding clause prevents any judicial review of the legislation in question.
Barnhardt said there must be two days of legislative sitting before a bill can receive first reading. If that passes, there must be at least one full day between the second and third readings, as well as committee hearings. That would take at least a week, even if the government limits debate time at each stage.
"All of that, it's not instantaneous. There's certain periods under the rules. And I stress again that it's not just for this bill. Those are the rules that apply to every bill," Barnhart said.
Barnhart said the only way to skip steps and speed things up is by unanimous consent of all MLAs. But with NDP members firmly opposed to the policy, that's not likely, he said.
If the third reading passes, the bill becomes law, or an "act." The government could declare the changes take effect immediately. It could also set a future date, or declare that cabinet will have the right to declare a date in the future.
Other experts have noted that opponents could then apply for another injunction against use of the notwithstanding clause, but said Canadian courts have been extremely reluctant to intervene in such matters.
The Saskatchewan Federation of Labour, the Canadian Civil Liberties Association and other opponents of the policy are planning a protest outside the legislature Tuesday before the session begins. They want to tell the government that the use of the notwithstanding clause is a violation of human rights and sets a dangerous precedent.
"Scott Moe, threatening to invoke the notwithstanding clause is a desperate and cheap political gambit to prevent members of his own caucus from crossing the floor," said Kent Peterson of the Saskatchewan Federation of Labour.
The special legislative sitting is scheduled to begin Tuesday at 1:30 p.m. CST.
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Jason Warick is a reporter with CBC Saskatoon.
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