Sask. premier 'jumping the gun' with turn to notwithstanding clause for pronoun policy: expert

Saskatchewan's government is moving at an unprecedented speed to invoke the notwithstanding clause, according to experts. 

The government intends to use the tool to cement its new policy on pronouns and names into place. In August, it announced that all youth under the age of 16 will have to get parental consent to use their chosen name and pronouns at school.  

Premier Scott Moe has said the policy is about parental rights and inclusion, while critics say the policy violates children's rights and could put trans and non-binary children at risk. 

Last week, Justice Michael Megaw said the policy cannot be implemented or enforced until the court assesses whether it violates constitutional rights and rules on its legitimacy. 

He wrote that "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."

In response to the injunction, Moe announced that he will use the notwithstanding clause to override the court. 

WATCH | Sask. premier doubles down on school pronoun policy, bypassing courts:

But that's not how the notwithstanding provision was intended to be used, according to Kerri Froc, who is an associate professor of constitutional law at the University of New Brunswick. 

"It's jumping the gun," Froc said.

"The fact that the notwithstanding clause is potentially going to be invoked for an interim order, even before all the evidence is presented by both sides before the government has a chance to really put forward its case, is rather extraordinary." 

The notwithstanding clause is Section 33 of the Charter of Rights and Freedoms. It allows the government to enact laws that are deemed unconstitutional and override certain charter rights, such as equality rights, for five years at a time. 

According to Froc, the provision was created to make sure people's rights were protected if legislators felt like non-elected judges missed the mark in their ruling.

For example, she said former Sask. Premier Allan Blakeney — who was in power as details of the Constitution were agreed upon — expressed concern that judges were going to hinder progressive social welfare legislation.

But the clause wasn't supposed to be used lightly.