Sask. Court of Appeal reserves decision on pronoun law legal challenge

Appeal hearing on Parents’ Bill of Rights complete WATCH: Arguments were presented on both sides of the Parents’ Bill of Rights at the Court of Appeal. Donovan Maess tells us what’s next.

An appeal hearing stemming from a court challenge of the Government of Saskatchewan’s Parents’ Bill of Rights has come to a close.

The provincial government is in Saskatchewan’s highest court fighting to prevent a Court of King’s Bench judge from determining if the law actually violates the Charter of Rights and Freedoms.

Lawyers representing UR Pride and supporting interveners finalized their arguments Tuesday in defense of the decision to allow their challenge to continue.

UR Pride, and its supporters, believe the court does have the ability to hear and make a decision regarding the law.

“The government is not empowered to silence the judiciary on a question of the constitutional rights,” Adam Goldenberg argued. “And make its voice the only voice in determining what is ultimately the voters’ decision whether this law should operate.”

In total, nine interveners support a decision to continue the challenge, ranging in organization from the Canadian Civil Liberties Association to the John Howard Society.

All nine organizations spoke at the hearing Tuesday.

“Section 33 [of the Charter of Rights and Freedoms] does not exempt the legislature from the application of the Charter provisions or the rights those provisions guarantee,” Goldenberg said. “[It] only exempts the legislature from the ordinary function which would otherwise render the legislation inoperable.”

“Sometimes Charter rights overlap,” said Justice Neal Caldwell. “And when we look at those rights, we look at the principle right and we don’t necessarily address the secondary or tertiary rights.”

Government reply

Before the hearing came to a close, lawyers representing the province were allowed to reply to the submissions made by UR Pride and its supporters.

“If the Section 12 hearing does go ahead, it doesn’t change the jurisdictional or mootness issue,” Malid Alishahi told the tribunal. “Mootness is not all or nothing. Some claims or actions may be moot. Others may not be.”

Alishahi went on the say UR Pride’s arguments regarding overlapping constitutional evidence is speculative.

“When the legislature invokes the notwithstanding clause, the sections that are identified are no longer applicable,” he said. “And the only question of the constitutionality is whether the government would be permitted to respond in that fashion.”

“There’s no requirement by the government to respond to a full case of a potential breach of which sections have been notwithstood,” Alishahi added.

Decision reserved

The five-judge panel reserved its decision to an unknown date as they take into account two full days of arguments.

In his closing, Chief Justice Robert Leurer thanked all sides for their well-developed submissions.

“We’ve been privileged with excellent argument by all counsel,” he said. “It’s been a privilege to hear counsel of this calibre in this court.”

Now, as they have many times over the past year, both sides now await a decision from the court.

Egale Canada Director of Legal and UR Pride co-counsel Bennett Jensen says its easy for him to be patient with the court process but understands it can be difficult for others.

“Litigation takes a long time,” he told reporters Tuesday. “As it proceeds, the harm continues.”

Jensen added the effects of this decision stretch beyond just those closely tied to the policies within the Parents’ Bill of Rights.

“The notwithstanding clause is not something that is well understood. There needs to be oversight of that function. That is what we’re arguing for,” he said.

“It’s something that should be concerning for all Canadians because all of us benefit from Charter protections every day.”