On August 31, 2023, UR Pride Centre for Sexuality and Gender Diversity filed a court application seeking to strike down Saskatchewan’s “Use of Preferred First Name and Pronouns by Students” Policy, alleging that this Policy violates Charter rights and freedoms. Four weeks later, Saskatchewan Court of King’s Bench Justice Michael Megaw granted an interim injunction to suspend this Policy pending a full court hearing, which would not take place for at least several months.
Saskatchewan Premier Scott Moe has pledged his government will use Section 33 of the Charter, the notwithstanding clause, and pass legislation this fall to ensure that Saskatchewan parents are fully informed when their children under the age of 16 wish to embark on a journey of gender transition by using opposite-sex names and pronouns.
Section 33 gives provincial legislatures and our federal Parliament the ability, through the passage of a law, to override a judge’s interpretation of certain Charter rights for a five-year term. That term can be renewed indefinitely.
In the first few decades after the Charter came into force, Section 33 acquired a bad reputation because it was used almost exclusively by the Quebec government to opt out of court rulings that struck down language laws which, in the courts’ view, unjustifiably restricted the use of English in Quebec.
Critics of Section 33 argue, “How dare politicians disregard court rulings pertaining to fundamental rights and freedoms!”
In recent years, more and more Canadians are noticing that Section 33 is not all that different from Section 1 of the Charter, which allows judges to override Charter rights and freedoms in much the same manner as Section 33 allows politicians to do so.
Since lockdowns were imposed in March of 2020, numerous court rulings have seen judges uphold blatant government violations of the freedoms to move, travel, associate, assemble and worship.
Judges have also approved of governments violating the Charter right of Canadians to choose freely, without any pressure or coercion, what medical treatments (in this case a brand-new vaccine) they wish to receive, or not.
In theory, Section 1 requires judges to force governments to justify any violation of Charter rights and freedoms “demonstrably,” with persuasive evidence. The test laid down by the Supreme Court of Canada in R. v. Oakes (1986) includes a requirement that governments show their violations of Charter rights and freedoms are actually doing more good than harm.
In practice, Section 1 has provided judges with a loophole big enough for a large truck to drive through. For example, in the July 2023 ruling in Ingram v. Alberta (Chief Medical Officer of Health,) the court fails to mention, let alone analyze, the abundant evidence placed before it about the massive harms that lockdowns inflicted on citizens.
Without a serious review of the damage done to the mental, physical, psychological, financial and spiritual well-being of vulnerable people, Justice Barbara Romaine simply states her general impression that the health orders which violated Charter freedoms had salutary benefits that outweighed the deleterious effects.
Some court rulings leave the impression that judges uphold government violations of Charter freedoms based more on media messaging than on the evidence placed squarely before them in court.
This is not how Section 1 is supposed to function.
In summary, Section 33 allows politicians to override Charter rights and freedoms, and Section 1 allows judges to do likewise. Inevitably and necessarily, rights and freedoms are protected — and violated — by people, be they judges, politicians, law enforcement or other authorities. The temporary injunction against Saskatchewan’s parental consent Policy is seen by some as a blatant violation of the well-established Charter right of parents to raise, nurture and protect their own children.
This right cannot be exercised when parents are kept in the dark about what is happening with their own children while at school. Others will welcome this injunction as a necessary affirmation of Charter rights.
No doubt, Canadians will continue to debate whether judges are more (or less) trustworthy and competent than politicians when it comes to defending the free society.
John Carpay – Western Standard
