When 14 U of S Law professors wrote a joint letter complaining about Saskatchewan’s use of the Notwithstanding Clause in its parental rights-pronoun legislation in October, 2023, they forgot someone.Allan Blakeney.The former NDP Premier and constitutional expert was also an outspoken advocate — along with then-Alberta Premier Peter Lougheed — for the inclusion of the Notwithstanding Clause into the Charter of Rights and Freedoms, in 1982. With singular forethought, they fought for the Clause as a Charter counter-balance and key provincial legislative tool. The NDP and the media don’t like to be reminded of what Blakeney actually wrote about the Notwithstanding Clause. Nor, presumably, would the Law profs. In a Leader-Post piece, Alec Salloum wrote last year, “Eyre encouraged the signees [of the letter] to read Allan Blakeney on the Notwithstanding Clause.” That’s it. No other details.NDP Justice Critic Nicole Sarauer said I was “selective” in my quoting of Blakeney, “He and others have been fairly clear in their writings that the Notwithstanding Clause was supposed to be used in extreme circumstances, rarely, and after the whole judicial process has reached its conclusion.”Hogwash. Meanwhile, no media outlet to my knowledge has ever published Blakeney’s actually words.In an academic paper in 2010, he wrote that he disagreed that the use of the Notwithstanding Clause amounts to a “suspension of rights.” He called that a “false dichotomy.”The Clause was included in the Charter to ensure that “the state could, for economic or social reasons…or because other rights were found to be more important, choose to override a Charter-protected right.” There would be instances, he also wrote, when “rights collide”—and that “the rights enumerated in the Charter are not more important than other human rights. The Charter should not be regarded as creating a hierarchy of rights.”Given all that, the issue is suddenly a lot more sophisticated, nuanced — and complex — than what Salloum, Sarauer, and the rest of the gang would have us believe.It’s also a lot more consistent with Quebec’s having used the Notwithstanding Clause scores of times. In fact, from 1982 to 1985, the province had in place an automatic Notwithstanding Clause override! Most recently, Quebec Premier François Legault has threatened to use the Clause to keep medical grads from leaving the province and to ban public prayer. It has become a “simple cure-all that Mr. Legault seems to reach for any time he feels governing might cause a headache,” wrote the Globe and Mail. What would those 14 Law profs say about that? “Well, that’s Quebec,” no doubt.In other words, the problem is when those pesky, disobedient western provinces avail themselves of the same power and don’t simply bow down before their federal and judicial masters. That’s what the federal justice minister was implying when he recently warned that provincial governments should not use the Notwithstanding Clause to “circumvent the rights and freedoms of Canadians…as provinces increasingly use it.” (Globe and Mail) He really means other provinces than Quebec.The CaseThe Saskatchewan Court of Appeal is currently deciding whether — once the Notwithstanding Clause is invoked by a Legislature — a judge has the right even to scrutinize and issue a declaration on whether a Charter right has been violated. Saskatchewan, with Alberta and New Brunswick as intervenors, say no. Once the Notwithstanding Clause is invoked, any judicial review is moot and would fundamentally undermine the Clause’s very power. It would also directly contradict a recent Quebec Court of Appeal decision on Bill 21 (Hak), which held that the pre-emptive use of the Notwithstanding Clause is both allowed and authorized — and part of a process whereby the “Legislature has the last word from the outset.”That case is likely heading to the Supreme Court of Canada, where Saskatchewan’s pronoun case will no doubt join it.Still up in the air at the Saskatchewan Court of Appeal is the Charter Section 12 argument levelled against the Government: that obtaining parental consent before a child can change a pronoun constitutes “cruel and unusual punishment” on par with egregious prison or other treatment by the state (think torture). Clearly, Saskatchewan disagrees. However, if that issue is directed back to the trial judge, the government could pre-empt it by also invoking the Notwithstanding Clause on Section 12. One thing I will add, which I have also said publicly: When the legislation was introduced, there was much talk by academics, the media, etc. about the “18 letters” received by the Ministry of Education, on which we were said to have based the bill. That too is hogwash. No bill was developed based on a few letters processed by a mid-level bureaucrat. Those letters were only, ever, a snapshot of what one official was aware of, as a member of the ‘client Ministry’ (Education), for the purposes of one affidavit.“Shifting trends in gender-affirming care”Looking back on the pronoun legislation, there is a degree of second-guessing. We could have done less (mandated that parents simply be ‘informed’ of a pronoun change instead of obtaining their ‘consent’) or more. Look at Alberta, which is limiting gender-affirming treatment for transgender youth, banning transgender participation in women’s and girls’ sports, as well as requiring parental consent for pronoun changes for children aged 15 and under at school (and notifying them once they are 16 and 17). Premier Danielle Smith recently said that her province, too, was willing to invoke the Notwithstanding Clause. Alberta is being challenged by the same groups that intervened in the Saskatchewan case. One of their arguments is that forcing children to undergo “pubertal development” (i.e., experience regular puberty) that is “inconsistent with their gender identity” can cause “significant distress and have lifelong consequences.” (Globe and Mail)However, even critics must acknowledge that variations on the Saskatchewan-Alberta approaches are becoming increasingly mainstream. As Kelly Cryderman wrote in the Globe and Mail: “[Danielle] Smith is acting with an understanding of the wider world, where the medical approach to gender dysphoria is evolving.”It is an inconvenient truth for these same critics that an increasing number of western democracies, including Denmark, the Netherlands, the US, and the UK, are part of this growing “evolution.”Britain recently announced that children with ‘gender dysphoria’ would no longer be routinely prescribed puberty-suppressing hormones at publicly-funded gender clinics. This decision was based on an independent review, which found evidence relating to pediatric gender care is “scant and inconclusive,” and that some authors were interpreting their data from a “particular ideological and/or theoretical standpoint.” (National Post)In the UK’s cross-hairs is the infamous north London Tavistock Clinic, which is now being sued by thousands of families who allege their children were rushed into taking life-changing, puberty-blocking drugs and may now have unintended medical consequences, including brain damage.Despite this, Canadian doctors groups are still “urging provinces not to interfere with ‘evidence-based’ medical treatment of children with gender dysphoria.” This as “others say what little evidence exists points to urging caution and restricting treatments for minors, and that Canada’s medical leaders are ignoring shifting trends in gender-affirming care.” (National Post)Remember Pink FloydOpinions on the pronoun legislation largely come down to whether you believe parents should be included in their children’s lives and that changing a pronoun is more than just a casual decision — and can be a gateway to other treatments, medical alterations, etc.While many at the doors during the recent election campaign were supportive of the Saskatchewan government’s legislation, there were also those who said the Notwithstanding Clause should not have been levelled on a “small minority” of children, who should be protected from their parents by their teachers.To which I would respectfully say: “Remember Pink Floyd?” We don’t need no education.We don’t need no thought control…. Hey, teachers, leave us kids alone! Sure, there are bad parents. But there are also bad teachers—and, whether you like it or not, teachers are loco parentis, in the place of parents, not parentis. That’s just a legal reality. And school divisions can’t actively, explicitly circumvent that. The intention by the Saskatchewan government was only, ever, to re-include parents — for example, in parent-teacher conferences, where they might be referring to their child by a different name than the teacher (secretly) was; or to prevent social workers from monitoring parents who might resist, say, chest binders being issued to their children or new names being used without their knowledge. There is even fear among some parents that “misgendering” children could be interpreted as child abuse. As for the Notwithstanding Clause: it is a brilliant, constitutional construct, included in the Charter of Rights and Freedoms — an endorsement of parliamentary sovereignty — that Canadians should be proud of. It sunsets after five years, which enables voters, not the courts, to decide if they are in favour of particular legislation. It is a sign of a healthy democracy — not the opposite.Interestingly, it was a version of Canada’s Notwithstanding Clause that Benjamin Netanyahu was pursuing when he proposed greater powers for Knesset parliamentarians over unelected judges. That’s what tens of thousands of Israelis were protesting before the October 7, 2023 massacres: a constitutional counter-balance that, decades ago, Saskatchewan’s own Allan Blakeney fought so hard for. — Bronwyn Eyre is the former Saskatchewan Minister of Justice and Attorney General
When 14 U of S Law professors wrote a joint letter complaining about Saskatchewan’s use of the Notwithstanding Clause in its parental rights-pronoun legislation in October, 2023, they forgot someone.Allan Blakeney.The former NDP Premier and constitutional expert was also an outspoken advocate — along with then-Alberta Premier Peter Lougheed — for the inclusion of the Notwithstanding Clause into the Charter of Rights and Freedoms, in 1982. With singular forethought, they fought for the Clause as a Charter counter-balance and key provincial legislative tool. The NDP and the media don’t like to be reminded of what Blakeney actually wrote about the Notwithstanding Clause. Nor, presumably, would the Law profs. In a Leader-Post piece, Alec Salloum wrote last year, “Eyre encouraged the signees [of the letter] to read Allan Blakeney on the Notwithstanding Clause.” That’s it. No other details.NDP Justice Critic Nicole Sarauer said I was “selective” in my quoting of Blakeney, “He and others have been fairly clear in their writings that the Notwithstanding Clause was supposed to be used in extreme circumstances, rarely, and after the whole judicial process has reached its conclusion.”Hogwash. Meanwhile, no media outlet to my knowledge has ever published Blakeney’s actually words.In an academic paper in 2010, he wrote that he disagreed that the use of the Notwithstanding Clause amounts to a “suspension of rights.” He called that a “false dichotomy.”The Clause was included in the Charter to ensure that “the state could, for economic or social reasons…or because other rights were found to be more important, choose to override a Charter-protected right.” There would be instances, he also wrote, when “rights collide”—and that “the rights enumerated in the Charter are not more important than other human rights. The Charter should not be regarded as creating a hierarchy of rights.”Given all that, the issue is suddenly a lot more sophisticated, nuanced — and complex — than what Salloum, Sarauer, and the rest of the gang would have us believe.It’s also a lot more consistent with Quebec’s having used the Notwithstanding Clause scores of times. In fact, from 1982 to 1985, the province had in place an automatic Notwithstanding Clause override! Most recently, Quebec Premier François Legault has threatened to use the Clause to keep medical grads from leaving the province and to ban public prayer. It has become a “simple cure-all that Mr. Legault seems to reach for any time he feels governing might cause a headache,” wrote the Globe and Mail. What would those 14 Law profs say about that? “Well, that’s Quebec,” no doubt.In other words, the problem is when those pesky, disobedient western provinces avail themselves of the same power and don’t simply bow down before their federal and judicial masters. That’s what the federal justice minister was implying when he recently warned that provincial governments should not use the Notwithstanding Clause to “circumvent the rights and freedoms of Canadians…as provinces increasingly use it.” (Globe and Mail) He really means other provinces than Quebec.The CaseThe Saskatchewan Court of Appeal is currently deciding whether — once the Notwithstanding Clause is invoked by a Legislature — a judge has the right even to scrutinize and issue a declaration on whether a Charter right has been violated. Saskatchewan, with Alberta and New Brunswick as intervenors, say no. Once the Notwithstanding Clause is invoked, any judicial review is moot and would fundamentally undermine the Clause’s very power. It would also directly contradict a recent Quebec Court of Appeal decision on Bill 21 (Hak), which held that the pre-emptive use of the Notwithstanding Clause is both allowed and authorized — and part of a process whereby the “Legislature has the last word from the outset.”That case is likely heading to the Supreme Court of Canada, where Saskatchewan’s pronoun case will no doubt join it.Still up in the air at the Saskatchewan Court of Appeal is the Charter Section 12 argument levelled against the Government: that obtaining parental consent before a child can change a pronoun constitutes “cruel and unusual punishment” on par with egregious prison or other treatment by the state (think torture). Clearly, Saskatchewan disagrees. However, if that issue is directed back to the trial judge, the government could pre-empt it by also invoking the Notwithstanding Clause on Section 12. One thing I will add, which I have also said publicly: When the legislation was introduced, there was much talk by academics, the media, etc. about the “18 letters” received by the Ministry of Education, on which we were said to have based the bill. That too is hogwash. No bill was developed based on a few letters processed by a mid-level bureaucrat. Those letters were only, ever, a snapshot of what one official was aware of, as a member of the ‘client Ministry’ (Education), for the purposes of one affidavit.“Shifting trends in gender-affirming care”Looking back on the pronoun legislation, there is a degree of second-guessing. We could have done less (mandated that parents simply be ‘informed’ of a pronoun change instead of obtaining their ‘consent’) or more. Look at Alberta, which is limiting gender-affirming treatment for transgender youth, banning transgender participation in women’s and girls’ sports, as well as requiring parental consent for pronoun changes for children aged 15 and under at school (and notifying them once they are 16 and 17). Premier Danielle Smith recently said that her province, too, was willing to invoke the Notwithstanding Clause. Alberta is being challenged by the same groups that intervened in the Saskatchewan case. One of their arguments is that forcing children to undergo “pubertal development” (i.e., experience regular puberty) that is “inconsistent with their gender identity” can cause “significant distress and have lifelong consequences.” (Globe and Mail)However, even critics must acknowledge that variations on the Saskatchewan-Alberta approaches are becoming increasingly mainstream. As Kelly Cryderman wrote in the Globe and Mail: “[Danielle] Smith is acting with an understanding of the wider world, where the medical approach to gender dysphoria is evolving.”It is an inconvenient truth for these same critics that an increasing number of western democracies, including Denmark, the Netherlands, the US, and the UK, are part of this growing “evolution.”Britain recently announced that children with ‘gender dysphoria’ would no longer be routinely prescribed puberty-suppressing hormones at publicly-funded gender clinics. This decision was based on an independent review, which found evidence relating to pediatric gender care is “scant and inconclusive,” and that some authors were interpreting their data from a “particular ideological and/or theoretical standpoint.” (National Post)In the UK’s cross-hairs is the infamous north London Tavistock Clinic, which is now being sued by thousands of families who allege their children were rushed into taking life-changing, puberty-blocking drugs and may now have unintended medical consequences, including brain damage.Despite this, Canadian doctors groups are still “urging provinces not to interfere with ‘evidence-based’ medical treatment of children with gender dysphoria.” This as “others say what little evidence exists points to urging caution and restricting treatments for minors, and that Canada’s medical leaders are ignoring shifting trends in gender-affirming care.” (National Post)Remember Pink FloydOpinions on the pronoun legislation largely come down to whether you believe parents should be included in their children’s lives and that changing a pronoun is more than just a casual decision — and can be a gateway to other treatments, medical alterations, etc.While many at the doors during the recent election campaign were supportive of the Saskatchewan government’s legislation, there were also those who said the Notwithstanding Clause should not have been levelled on a “small minority” of children, who should be protected from their parents by their teachers.To which I would respectfully say: “Remember Pink Floyd?” We don’t need no education.We don’t need no thought control…. Hey, teachers, leave us kids alone! Sure, there are bad parents. But there are also bad teachers—and, whether you like it or not, teachers are loco parentis, in the place of parents, not parentis. That’s just a legal reality. And school divisions can’t actively, explicitly circumvent that. The intention by the Saskatchewan government was only, ever, to re-include parents — for example, in parent-teacher conferences, where they might be referring to their child by a different name than the teacher (secretly) was; or to prevent social workers from monitoring parents who might resist, say, chest binders being issued to their children or new names being used without their knowledge. There is even fear among some parents that “misgendering” children could be interpreted as child abuse. As for the Notwithstanding Clause: it is a brilliant, constitutional construct, included in the Charter of Rights and Freedoms — an endorsement of parliamentary sovereignty — that Canadians should be proud of. It sunsets after five years, which enables voters, not the courts, to decide if they are in favour of particular legislation. It is a sign of a healthy democracy — not the opposite.Interestingly, it was a version of Canada’s Notwithstanding Clause that Benjamin Netanyahu was pursuing when he proposed greater powers for Knesset parliamentarians over unelected judges. That’s what tens of thousands of Israelis were protesting before the October 7, 2023 massacres: a constitutional counter-balance that, decades ago, Saskatchewan’s own Allan Blakeney fought so hard for. — Bronwyn Eyre is the former Saskatchewan Minister of Justice and Attorney General
