Sask. Parental Bill of Rights introduced, notwithstanding clause to be invoked
Government plans for 40 hours of debate on bill through next week
The Saskatchewan government introduced Bill 137, the Parental Bill of Rights, on Thursday morning, moving ahead with its plan to invoke the notwithstanding clause to protect a controversial new policy dictating how schools deal with gender-diverse students.
"Parents should always be involved in important decisions involving their children," said Education Minister Jeremy Cockrill. "The parental inclusion and consent policy introduced in August and now this new legislation we are introducing today will ensure that continues to be the case."
Cockrill said the legislation "provides clarity that the policy will remain in place."
Once passed, the law will require schools to receive consent from parents to use a child's gender-related preferred name or gender identity if they are under 16. The bill also says that if a child feels they will suffer physical, emotional or mental harm from the school seeking consent, the principal will direct the child to school support staff to develop a plan to eventually tell their parent.
The government said the amendments are meant to keep parents informed and will support students.
"This policy is important to a large majority of Saskatchewan people, it's important to our government, that's why we're coming back and offering the opposition an incredible number of additional hours," Cockrill said.
Opposition house leader and justice critic Nicole Sarauer spoke in the house for two hours following question period.
She spoke against a government motion to double the maximum debate on the bill over the next week from 20 hours to 40. Sarauer was critical of the government's claim the bill can be scrutinized properly in a week compared to a period of several of months, as is the usual standard.
"To call that extra time, extra scrutiny, is an absolute joke and a farce, and it's slap in the face to democracy in this province. Especially when we're talking about a piece of legislation that's going to use the notwithstanding clause to trample on the rights of Saskatchewan children," she said.
The government's bill invokes the notwithstanding clause as it pertains to both certain sections of the Canadian Charter of Rights and Freedoms and the Saskatchewan Human Rights Code.
Cockrill was asked if he was comfortable overriding the rights of children with this legislation.
"I think over the next number of days we're going to get into a debate on the collision of rights and how the notwithstanding clause addresses that. I know I'm comfortable with the legislation that's been introduced today and how that will play out," he said.
Government and Opposition MLAs will return on Monday. It is expected that extended hours that will have the house sit from 9 a.m. to 11 p.m. CST could start Tuesday and run until the following Sunday.
Premier Scott Moe had called the legislature back early to introduce the new legislation before the fall sitting starts on Oct. 25.
The notwithstanding clause can only override certain sections of the Canadian Charter of Rights and Freedoms 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.
The bill is public now that it has been tabled in the legislature. It closely resembles the policy regarding name and pronoun use in schools introduced in August.
The policy required schools to receive parental permission if a student under 16 wanted to change their chosen name or pronoun. Then-Minister of Education Dustin Duncan said the policy does not apply to nicknames or shortened versions of names.
"I think that we're talking when children are looking to change their name associated with a change in their gender. If a child prefers to go by a shortened version of what their given name is, I think that's different than what this policy is speaking to," Duncan said.
Shortly after the policy was introduced, UR Pride Centre for Sexuality and Gender Diversity filed a lawsuit at the Court of King's Bench in Regina aiming to have the policy stopped. Lawyers representing the organization argued for an injunction to have the policy paused pending a judicial review.
King's Bench Justice Michael Megaw granted the injunction on Sept. 28.
Hours after the decision was released, Moe announced he planned to use the notwithstanding clause.
Moe told reporters on Tuesday his government called an emergency session to introduce and eventually pass the bill in order to protect the policy from court challenges.
"With respect to the notwithstanding clause itself, that is part of the Charter and it was put in place so that elected members in the future would be able to determine which of those rights ultimately would be in place moving forward. And that is ultimately why it is being utilized here," Moe said.
Moe said the province's 27 school divisions were not in sync on policies for name and pronoun changes prior to the policy.
"There's a number of school divisions that have very similar, if not virtually identical policies in place today. What we are saying is that all of the school divisions across the province are going to mirror that policy at the conclusion of this session."
A rally outside the legislature on Tuesday saw hundreds voice opposition to the policy and the use of the clause.
Cockrill contend that the changes are being driven by feedback from parents who have contacted the government members both formally and informally.
"We've heard from parents that have different views of this legislation and the notwithstanding clause in this policy. But all agree on one thing and that is they don't want to see less involvement of the parents in the education system," Moe said.
Moe said government MLAs have been asked by constituents to move forward with the legislation.
"This is very much a government that is being responsive to parents from across this province, of which we're fortunate to have a large caucus that represents many areas from corner to corner to corner in the province, putting forward a piece of legislation that largely parents that have reached out to us are supportive of."
When asked why the government did not consult transgender youth, gay-straight alliances, teachers or students before introducing the policy, Moe pushed back.
"There is a number of MLAs that have spoken not only to parents but to others as well. Those discussions, those emails, that correspondence that happens with the MLA through their MLA office is not going to be discussed in detail in the public."
When asked how many children the policy will affect, Cockrill said Wednesday, "whether the number is one or 10 or 100, the real question here is ensuring that if there is a child that feels like they're in potential harm, we want to make sure supports are available."
"We look forward to working with school divisions and their implementation plan to prevent that harm."
WATCH | Governments keep using the notwithstanding clause — what is it?:
Saskatchewan's Children's Advocate has called for the policy to be changed.
"We agree it's best for parents to be involved in significant decisions of their children. That's a worthy aspect of the policy," Lisa Broda said. "However it has to uphold the children's rights and not effectively veto their rights, because these are human rights that we all have."
When asked about the advocate's analysis, Moe said Tuesday, "that's her opinion."
In his decision, Justice Megaw wrote that until there can be a full hearing, "the importance of the governmental policy is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity."
Moe called the decision "judicial overreach."
In response, the Canadian Bar Association took issue with Moe's comments.
"The role of protecting the rights and freedoms from government overreach under our system of government falls to the courts. Statements that cast doubt on the independence and the role of the judiciary erode the public's trust in the legal system and in our democratic institutions," said CBA President John Stefaniuk.
Motion proposes 40 hours to debate bill
On Tuesday, Government House Leader Jeremy Harrison put forward a motion to have MLAs debate the new bill for 40 hours over a 10-day period. Members are required to debate bills for a maximum of 20 hours which is usually spread across several weeks during the spring sitting.
Harrison said doubling the debate time would allow members the chance to "fully canvas the issues and give them full opportunity to debate the bill."
Sarauer disagreed, saying the bill should have been introduced in the fall sitting and followed regular procedure.
That "would have then resulted in months of scrutiny from the public. Instead, we're seeing the government calling the special sitting and rule changes that will result in days of scrutiny rather than the typical months. We oppose that. We think that this should have the scrutiny that it deserves."
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With files from Jason Warick