Moe’s use of Charter clause ‘outside … normal legal process’: profs

“These concerns are serious and warrant careful scrutiny and tailoring of the legislation to ensure that the constitutional and human rights of a vulnerable group are not unnecessarily violated.”

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A group of 14 University of Saskatchewan law faculty members have written a letter to the province urging it to allow for the “normal legal process to take its course” as the government readies to pass Bill 137.

The letter, sent to Premier Scott Moe and Education Minister Jeremy Cockrill, outlines the pre-emptive use of the clause and where it overrides sections of the Charter of Rights and Freedoms. It explains the government uses the notwithstanding clause to override sections 2 (fundamental freedoms), 7 (life, liberty, and security of the person) and 15 (equality rights), as well as overwriting sections of the Saskatchewan Human Rights Code.

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“The use of the notwithstanding clause in this case takes Bill 137 well outside of the normal legal process,” read the letter.

Justice Minister Bronwyn Eyre said the notwithstanding clause has been used “pre-emptively 88 per cent of the time that it’s been used.”

Eyre said the clause is a tool at their disposal, and while the policy “was drafted in nine days,” there was considerable discussion leading up to it.

Asked if she feels the government got the policy right over those nine days of drafting Eyre said “well, that’s for the courts to say.”

Eyre disagreed that the government was acting in haste and said the law professors and staff at the University of Saskatchewan would be well suited to know that Section 33 of the Charter is legal and the government is acting accordingly.

Eye said she “would have to double-check,” when asked if the notwithstanding clause has ever been used to override the rights of children.

Nicole Sarauer, Deputy Leader of the Opposition and justice critic, said to her knowledge there has never been a case in Canada where the rights of children were directly overwritten by the notwithstanding clause.

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Referencing Quebec’s Bill 21, which prevents some public sector employees from wearing religious symbols while working, Sarauer said “I think that’s egregious and to do it to override the Charter rights of children is horrific, and it sets a very dangerous precedent.”

The law faculty’s statement referred to the wording used by Justice Michael Megaw, who said the policy could cause “irreparable harm” to already vulnerable children, as well as concerns from the Saskatchewan Advocate for Children and Youth, the Saskatchewan Psychiatric Association.

“These concerns are serious and warrant careful scrutiny and tailoring of the legislation to ensure that the constitutional and human rights of a vulnerable group are not unnecessarily violated,” it read.

The letter — signed by professors, associate and assistant professors as well as instructors — lays out how the notwithstanding clause would typically be deployed.

“In the normal process, judges, who are experts in the Constitution, are able to carefully assess whether laws that limit rights have a sufficiently compelling purpose and limit rights in a sufficiently tailored way. Moving outside the normal process is an exceptional action,” the letter reads.

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“In the case of Bill 137, we are unable to identify any exceptional circumstances that warrant a departure from the usual practice.”

Given that the clause allows for governments to create laws that contradict and override sections of the Charter, of a citizen’s constitutional rights, it is unlike any other “tool in the tool box” — a degree of sober second thoughts and judicial scrutiny is needed, the signees argue.

Eyre encouraged the signees to read Allan Blakeney on the notwithstanding clause. Sarauer said the minister had been “selective” with her quoting of Blakeney, saying he and others “have been fairly clear in their writings that the notwithstanding clause was supposed to be used in extreme circumstances, rarely, after the whole judicial process has reached its conclusion.”

They said the clause “should be used only in the most unusual and urgent of circumstances. We are not alone in thinking that a government acting in haste and pre-emptively employing an exceptional process has not taken important constitutional rights seriously.”

The letter concludes with: “We urge the government to allow the normal legal process to take its course, and to reassure everyone that it will value and protect the constitutional and human rights of its citizens.”

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