The Saskatchewan government is expected to table a bill Tuesday afternoon to invoke the notwithstanding clause, part of an effort to fast-track its controversial school pronoun policy.
The policy would require school officials to inform parents if a student under 16 wanted to change their name or pronouns at school.
The government will likely get its way, but nothing is likely to change overnight, said Gordon Barnhart, former lieutenant governor and clerk of the Saskatchewan legislature.
He said it could take at least a week to clear all the legislative hurdles and that the changes won’t necessarily have an immediate effect on schools.
“The current government has a majority in the legislature, so that’s a given right there, but in terms of any legislation, whether it’s this or any other, there’s a process,” Barnhart said.
Last week, a Regina judge imposed an injunction on the policy.
The judge said there was no evidence of meaningful research or consultation with parents, students or teachers. The judge said a full court hearing needs to be held before the policy can be implemented.
That hearing was scheduled for November. But Premier Scott Moe has called ahead of time for the legislature to use the notwithstanding clause to overturn the court ruling.
The notwithstanding clause is a provision that allows governments to override certain Charter rights for up to five years by passing legislation.
The clause can only override certain sections of the charter dealing with fundamental freedoms, legal rights and equal rights. It cannot be used to nullify democratic rights. Once invoked, the notwithstanding clause prevents any judicial review of the legislation in question.
Barnhardt said two days of legislative session must pass before a bill can receive first reading. If that passes, there should be at least a full day between the second and third readings, as well as the committee hearings. That would take at least a week, even if the government limits debate time at each stage.
“All of that is not instantaneous. There are certain periods under the rules. And I emphasize again that it’s not just for this bill. Those are the rules that apply to all bills,” Barnhart said.
Barnhart said the only way to skip steps and speed things up is through unanimous consent of all MLAs. But since NDP members strongly oppose this policy, that’s not likely, he said.
If the third reading is passed, the bill becomes law or “law”. The government could declare that the changes take effect immediately. It could also set a future date or declare that the cabinet will have the right to declare a date in the future.
Other experts have noted that opponents could then seek another injunction against the use of the notwithstanding clause, but said Canadian courts have been extremely reluctant to intervene in such matters.
The Saskatchewan Federation of Labor, the Canadian Civil Liberties Association and other opponents of the policy are planning a protest outside the legislature on Tuesday before the session begins. They want to tell the government that the use of the notwithstanding clause is a violation of human rights and sets a dangerous precedent.
“Scott Moe, threatening to invoke the notwithstanding clause is a desperate and cheap political tactic to keep members of his own group from crossing the floor,” said Kent Peterson of the Saskatchewan Federation of Labor.
The special legislative session is scheduled to begin Tuesday at 1:30 pm CST.
