Notwithstanding clause architect says Sask. government should wait for courts to rule on school gender policy

One of the architects of Canada's notwithstanding clause says the Saskatchewan government should be more patient.

Premier Scott Moe introduced a bill invoking the clause this week in the legislature. It's scheduled to be debated next week.

The bill would override an initial court injunction against a policy mandating parental notification if a student wants to change their gender or identity at school.

It would also override any future court ruling for five years, including a hearing scheduled for next month.

Howard Leeson, who was Saskatchewan's deputy minister of intergovernmental affairs in the Allan Blakeney government, was central to the 1982 negotiations that repatriated the Canadian constitution and created the notwithstanding clause.

Leeson said he and other architects of the clause intended it for provincial governments to use in exceptional circumstances — and only after all court matters had been completed.

"I think that there's been in this case a procedural short circuit," said Leeson, now a professor emeritus of political science at the University of Regina. "It would have been better for the government to wait until after the merits of the case itself had been argued."

In this case, the first court hearing — where the government would be forced to present its evidence and show that it isn't violating the Canadian Charter of Rights and Freedoms — is just a few weeks away. If the government were to win in court, there would be no need to invoke the notwithstanding clause.

Leeson said the previous government of Premier Brad Wall wanted to allow non-Catholic students to attend Catholic schools. The matter went to court, and to appeal.

During this process, a bill invoking the notwithstanding clause was passed in the legislature, but it was never proclaimed into law. It was put on hold while the court process played out. The government was victorious and there was no need to invoke the notwithstanding clause, Leeson noted.

Leeson said Moe's pledge to invoke the clause at this stage may be legal, but there are other considerations.

"It's certainly being used properly and constitutionally. But procedurally, I think it would have been better if it had followed the earlier procedure of allowing the judgment to be rendered by the court on the substance of the case first," Leeson said.

Debate on the bill, called the Parents' Bill of Rights, is expected to last all of next week. Given the government's large majority, it is expected to be passed by the legislature.

Premier Scott Moe and Education Minister Jeremy Cockrill have maintained that the policy and soon-to-be-law are popular among the public.

The Opposition NDP has criticized the bill, saying the government is focusing on the wrong priorities and that the whole process has been rushed unnecessarily.