Lawyer opposes using notwithstanding clause for pronoun policy

The legal counsel for UR Pride compares Scott Moe’s use of the notwithstanding clause to bullying.

Toronto Lawyer Adam Goldenberg said during an appearance on Gormley with guest host Taylor MacPherson on Monday that Moe is going against experts who say this policy will cause harm to children.

“The premier has just decided that he’s willing to inflict harm on these kids for whatever reason, and he’s going to use the notwithstanding clause to do it,” said Goldenberg.

He said Moe’s use of the notwithstanding clause is historic.

“I’m not aware of a single other law anywhere in Canada, ever, where a legislature has said notwithstanding the constitutional rights of children,” he said.

“So when the government says, ‘We don’t care about that. We don’t care that a judge, having looked at this evidence, thinks the policy is going to cause harm. We’re going to use the notwithstanding clause to push ahead with it anyway.’ That’s really unfortunate, to put it very mildly.”

To obtain the injunction they wanted, Goldenberg said they had to prove the policy would cause “irreparable harm to children unless it was put on pause.”

“We’re fighting about whether the policy is constitutional or not. And until you know whether it’s constitutional or not, you shouldn’t be causing irreparable harm in the meantime,” he said.

The call for an injunction follows the Saskatchewan government’s announcement of a policy with sex education and gender and pronoun changes at the forefront.

Both sides had the opportunity to plea their case last week. At the end of that process, the judge decided the policy would cause harm and called for the injunction.

Goldenberg said this is something that happens everyday in court rooms across Canada.

“Not usually against the government. It’s difficult to get an injunction against the government. The judge concluded this was one of those clear cases where an injunction against a government policy is appropriate,” he said.

The policy has sparked heated debate in the province since its announcement in August.

Goldenberg said the public attention will not effect the decision, but it’s important to recognize that social media can cause confusion.

“(In court) you actually need to establish the basis for your arguments with evidence. The government has had the opportunity to do that, and so far, they haven’t,” he said.

He said the government deciding to use the notwithstanding clause is inflicting harm directly to gender diverse students.

“We all know that not all parents provide a safe environment for their kids at home. Particularity for gender diverse students who are the ones that are directly affected by this policy,” he said.

Goldenberg said even for kids with supportive parents, coming out to them can be terrifying.

“Lots of kids come out to a trusted adult at school, a coach, the school nurse, the guidance counsellor, a teacher, just to have a safe adult that they can talk to and share this with as a test run before they bring it up with mom and dad just to know that it’s going to be okay.”

Arguments to determine if the policy is constitutional or not resume in November.