"(These) are improper motives and the court should not be drawn into such an exercise."
Author of the article: Larissa Kurz
Published Jan 11, 2024 •
Deron Kuski, of firm MLT Aikins and acting as legal counsel for the Government of Saskatchewan, walks out of the Court of King's Bench during lunch break of a hearing regarding legal action against government's pronoun consent policy in Regina on Wednesday, January 10, 2024.
PHOTO BY HEYWOOD YU /Regina Leader-Post
Lawyers for the Government of Saskatchewan say the UR Pride Centre for Sexual and Gender Diversity has “improper motives” in asking the court to allow litigation against the province’s pronoun consent law to continue.
Deron Kuski and Milad Alishahi, private counsel from firm MLT Aikins representing the province, stood Thursday to argue the entire case should be ruled moot, regardless of any amendments sought by the non-profit to the case it originally filed in August.
“Our submission is that nothing will remain of the originating notice to be dealt with, if you accept our submissions,” Kuski told a Regina Court of King’s Bench justice.
UR Pride’s original filing sought to challenge a policy directive requiring schools to inform parents should students under 16 ask to change their names or pronouns, on grounds that it violated sections 2, 7 and 15 of the Charter of Rights and Freedoms.
Kuski argued the matter is no longer relevant, as the policy directive in question was rescinded when the province passed Bill 137, or the Parent’s Bill of Rights, which enshrined provisions from the former policy directive into law.
The use of Section 33, or the notwithstanding clause, when the government passed Bill 137 in October shields the law from Charter challenges under the sections outlined in the original filing, Kuski added.
Kuski further advised the court that the government is not opposed to letting UR Pride amend its application to instead target Bill 137, rather than the Parental Inclusion and Consent policy as originally filed.
The opposition is to UR Pride attempting to add a claim the law violates Section 12 of the Charter, which protects a person’s right not to be subjected to any cruel and unusual treatment or punishment.
Kuski labelled the proposed Section 12 challenge as “a creative way to get around the legislation,” referring to arguments Wednesday from UR Pride counsel Adam Goldenberg when he said they had to consider a different section “because of the decision the Legislature made.”
“This is a Trojan horse to try and convince the court to continue this claim, for reasons other than a belief in merit. They’re trying to do indirectly what they cannot accomplish directly,” he said.
“It’s not an attempt to raise real issue between the parties, but to navigate around their own fallacies of the use of the notwithstanding clause.”
Said called adding a new claim after-the-fact an “abuse of process” that he posited makes the case “frivolous.”
He claimed UR Pride’s arguments “do not meet the threshold” necessary, and that their timing is strategic.
UR Pride had “the whole of the Charter” when crafting the original claim and chose not to include Section 12, he said.
Kuski argued UR Pride is attempting to use the court system to “hold government accountable or inform the electorate,” which he said is “not the role of the judiciary.”
“Those are improper motives and the court should not be drawn into such an exercise,” Kuski said.
“There is a risk here that rather than your courtroom be used to as a means to resolve what are genuine disputes between parties, it’s used — and I mean this with no offense — as a political soapbox,” Alishahi told Justice Michael Megaw.
UR Pride continues effort to challenge Saskatchewan pronoun law
Lawyers for the Government of Saskatchewan say the UR Pride Centre for Sexual and Gender Diversity has “improper motives” in asking the court to allow litigation against the province’s pronoun consent law to continue.
Deron Kuski and Milad Alishahi, private counsel from firm MLT Aikins representing the province, stood Thursday to argue the entire case should be ruled moot, regardless of any amendments sought by the non-profit to the case it originally filed in August.
“Our submission is that nothing will remain of the originating notice to be dealt with, if you accept our submissions,” Kuski told a Regina Court of King’s Bench justice.
UR Pride’s original filing sought to challenge a policy directive requiring schools to inform parents should students under 16 ask to change their names or pronouns, on grounds that it violated sections 2, 7 and 15 of the Charter of Rights and Freedoms.
Kuski argued the matter is no longer relevant, as the policy directive in question was rescinded when the province passed Bill 137, or the Parent’s Bill of Rights, which enshrined provisions from the former policy directive into law.
The use of Section 33, or the notwithstanding clause, when the government passed Bill 137 in October shields the law from Charter challenges under the sections outlined in the original filing, Kuski added.
Kuski further advised the court that the government is not opposed to letting UR Pride amend its application to instead target Bill 137, rather than the Parental Inclusion and Consent policy as originally filed.
The opposition is to UR Pride attempting to add a claim the law violates Section 12 of the Charter, which protects a person’s right not to be subjected to any cruel and unusual treatment or punishment.
Kuski labelled the proposed Section 12 challenge as “a creative way to get around the legislation,” referring to arguments Wednesday from UR Pride counsel Adam Goldenberg when he said they had to consider a different section “because of the decision the Legislature made.”
“This is a Trojan horse to try and convince the court to continue this claim, for reasons other than a belief in merit. They’re trying to do indirectly what they cannot accomplish directly,” he said.
“It’s not an attempt to raise real issue between the parties, but to navigate around their own fallacies of the use of the notwithstanding clause.”
Said called adding a new claim after-the-fact an “abuse of process” that he posited makes the case “frivolous.”
He claimed UR Pride’s arguments “do not meet the threshold” necessary, and that their timing is strategic.
UR Pride had “the whole of the Charter” when crafting the original claim and chose not to include Section 12, he said.
Kuski argued UR Pride is attempting to use the court system to “hold government accountable or inform the electorate,” which he said is “not the role of the judiciary.”
“Those are improper motives and the court should not be drawn into such an exercise,” Kuski said.
“There is a risk here that rather than your courtroom be used to as a means to resolve what are genuine disputes between parties, it’s used — and I mean this with no offense — as a political soapbox,” Alishahi told Justice Michael Megaw.
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Further, invoking Section 33, or the notwithstanding clause, in Bill 137 is not an admission of a violation of rights, as alleged by Goldenberg, said Kuski.
The reasons government put forward the bill as it did “isn’t really relevant” to the court, he argued.
“The fact is they have this power in the Constitution and they’ve exercised it,” he said. “The position of government in this matter is there were no charter breaches in this legislation.”
He furthered that “more harm is caused without the legislation, than with the legislation,” as there is no process to address the potential harms caused by “secret social transitions,” the term used for gender identity changes without parental consent.
The legislation “better protects” youth, because it requires school staff to put together a plan to approach the parent, he argued.
Kuski continued that to add Section 12 is to open a new argument, and as such requires a new proceeding. Government suggests a statement of claim is more appropriate than an originating application.
Should the originating application be struck, as suggested, and UR Pride put forward a statement of claim, Kuski advised government would oppose on the same merits as argued Thursday.
Responding to the day’s arguments, Goldenberg stood again to call the concept of “secret transitions” touted by government a “bogeyman.”
“This language of secrecy is, frankly, insulting to gender diverse youth and professional educators,” he added.
He went on to address the government’s position that it was “vexatious” to ask the court to hear the case and issue a declaration on its merits.
“I’m sorry accountability under the Constitution is annoying,” he added.
Kuski had earlier in the day indicated he’d be willing to speak to media outside the courthouse, if his client was amenable.
Media were later informed that neither of the lawyers representing the province would be made available, with no explanation offered for why a statement from a government spokesperson would be provided instead.
“The majority of Canadians and Saskatchewan citizens are in favour of parental rights and do not believe that these rights constitute ‘cruel and unusual punishment,’ which is an unprecedented Charter argument generally used in penal cases,” the emailed statement read, before concluding that no further comment could be provided “at this time” as the matter is before the courts.
Megaw reserved his decision, promising to deliver it in a timely fashion.
Two additional intervener applications from Regina Civic Awareness and Action Network and Our Duty Canada also remain undecided, he said, which may or may not require another hearing.
lkurz@postmedia.com
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