In late September, Justice Michael Megaw of the Saskatchewan Court of King’s Bench issued an injunction “pausing” implementation of a proposed law requiring parental consent for decisions by children under 16 to change names and pronoun preferences. Instituting such changes is sometimes called “social transitioning.”.Saskatchewan Premier Scott Moe responded by announcing the early recall of the legislature to pass an amended law that included the invocation of Section 33 of the Charter, the “notwithstanding clause.” The Saskatchewan legislature returned to duty last Tuesday. The same day two commentaries appeared to discuss Moe’s action..The first, by Andrew Coyne in the Globe and Mail, carried the provocative title: If it’s easy to override the Charter, then what’s protecting Canadians’ rights? A rhetorical question, the answer to which was: nothing. He explained that “for the first time in our history” rights have “no protection at all,” and concluded with a lament: “Does the current crew in Ottawa understand this? Does anyone?”.He meant: does anyone besides Andrew Coyne understand what damage Premier Moe was doing?.Coyne preceded his lugubrious final remarks with a sarcastic appraisal of Premier Moe and his motives..There was no reason for the Saskatchewan legislature to hurry back to work. Justice Megaw did not overturn the previous regulation, “drafted and implemented inside of five days,” but “simply directed the government” to take more time to consider its impact on children..The “elementary” requirement, he went on, was to show “the benefits outweighed the harms to the rights of a particularly vulnerable minority.” And, as for parents, it was “preposterous” that Moe would overrule the Charter to enable parents to “find out something a little earlier than they would otherwise.”.Everything was clear to Coyne. It’s all about “politics,” which meant “pandering to obscure fears and broader resentments” of teachers, bureaucrats and “eggheads,” a quaint term scarcely employed nowadays..Moe’s use was only one example of “the grubby reality” of Section 33. In reality the notwithstanding clause was nothing more than a way of picking a fight with “those uppity judges,” by using arbitrary and unjustified “raw power” to beat up on “unpopular minorities.”.This was not what the drafters of Section 33 had in mind, Coyne said. They thought it would be invoked only rarely. Worse, if the Charter, “the sole counterweight” to the “broadly decentralizing thrust” of the 1982 Constitution Act, can be overridden, “one of the few remaining ties binding the federation is gone.”.Before turning to the second commentary, let me observe only that Coyne’s view, that the 1982 Constitution Act was broadly decentralizing, could only appear that way to a progressive Laurentian intellectual — or egghead — such as he..The second commentary by Dave Snow, When Rights Clash: The Notwithstanding Clause and Saskatchewan’s Pronoun Policy, was published by the Macdonald-Laurier Institute, an Ottawa think-tank..Snow is a political scientist at the University of Guelph. Along with three of his colleagues, also graduates of the University of Calgary, he has established an eastern outpost of the notorious Calgary School. Coyne would have benefitted from understanding Snow’s measured analysis..To begin with, unlike Coyne, Snow did not begin and end by taking a position on the merits of the controversy. Rather, he assumed that both sides approached the issue in good faith. He was not engaged in moral obfuscation but sought to clarify what the purpose of Section 33 was. This issue eluded Coyne..According to Snow, however, “the conflict over parental consent and children’s pronouns is precisely the type of issue for which the NWC [notwithstanding clause] was envisioned.”.Where Coyne thought the Charter was somehow the source of the rights of Canadians citizens, Snow understood Canadian rights and freedoms had long been protected by the common law and parliamentary practices. The only thing the Charter was supposed to do was increase the role of judges in defining and protecting political rights..Section 33 had the explicit objective of temporarily overruling the judiciary to uphold the tradition of legislative or parliamentary protection of political rights. The assumption since borne out many times was that unelected judges could easily err in their understanding of political rights..Moreover, as Geoff Sigalet has rightly argued in detail, Section 33 was a counterweight to the broadly centralizing tendencies of the Charter to which Coyne was utterly oblivious..More specifically, since the 1982 Constitution Act came into effect, the language of rights — or “rights talk” — has been used to describe policy preferences. This semantic usage was required to make policy differences suitable for judicial decisions in the first place..My friend, Rainer Knopff, quoted by Snow, echoed the jurisprudence on the limits to adjudication first brought to light a half century ago by Lon Fuller at Harvard Law School: “courts don’t make good compromises.” Fuller, Knopf and Snow are right..With the question of social transitioning, compromises between the rights of parents and the rights of children, including their privacy rights, are just what the courts are least well equipped to achieve..Moreover, there is no obvious Charter-based jurisprudence or precedent that applies directly to parental rights in conflict with the rights of children to have their pronouns recognized at school without parental consent. The reason is obvious: this conflict over equality rights did not exist until very recently..And yet Justice Megaw said his injunction would prevent “potentially irreparable harm and mental health difficulty.” This was an obvious hint that, when challenged, he would find the Saskatchewan regulations to be illegal. It would not be the first time progressive judges invalidated provincial policies..Snow is correct and Coyne is not. Section 33 “was included in the Charter precisely for situations like the gender pronoun issue,” to protect rights beyond those enumerated in the Charter and associated judicial decisions, especially where provincial rights and thus federalism is concentred..That was one of the reasons for Alberta’s Sovereignty Act. Moe’s use of Section 33 is, in this context, equivalent to the Sovereignty Act insofar as it preserves a major principle of federalism against overreach by a federal agency, in this case the judiciary.
