Scott Moe and the Notwithstanding Clause

There is a tipping point. I promise.

Scott Moe’s stance at any given moment, on any given issue, is rooted in a foundation of integrity as soft and shifting as a Caribbean beach.

“We don’t govern by polls. We govern by proper policy as well as what we can and can’t do with respect to privacy information.” - Saskatchewan Premier Scott Moe, news conference, June 29, 2021

“A new poll from Angus Reid Institute shows strong support in SK and across Canada for Parental Inclusion and Consent in education … Just 10% agree with the NDP position...” Also Scott Moe, Twitter, August 28, 2023

Citing an Angus Reid poll as evidence that he has moral high ground in the battle he’s launched against Saskatchewan’s LGBQT2S+ community is pretty low, even for Scooter.

Doubling down, Moe now says he’s going to turn his recently-released, blatantly discriminatory and dangerous education policy on gender and kids into law in Saskatchewan. Knowing Canada won’t allow him to do that, Moe has trotted out Section 33 of the Canadian Charter of Rights and Freedoms as the reason he’s going to do it anyway.

Section 33 of the Canadian Charter of Rights and Freedoms, also known as the “notwithstanding clause”, allows provincial or federal governments to temporarily (up to five years maximum) override certain rights and freedoms protected by the Charter. Evoking Section 33 means provinces can pass legislation that may otherwise be considered unconstitutional, under the guise of striking a balance between protecting individual rights and allowing governments some flexibility to enact laws in exceptional circumstances.

We have the Saskatchewan NDP - specifically former premier Allan Blakeney - to thank for the notwithstanding clause.

Its inception cleared the way in the early 1980s for Prime Minister Pierre Trudeau to move ahead with his legacy project - the Canadian Charter of Rights and Freedoms.

November 6, 1981 Saskatoon Star Phoenix

“It’s an honorable bargain for Canada.” - Saskatchewan Premier Allan Blakeney on the 11th hour introduction of the notwithstanding clause, November 6, 1981 Saskatoon Star Phoenix

To be fair to Blakeney, he was pretty clear at the time that Section 33 was meant to address extreme circumstances. The example Blakeney used was that of a taxpayer who could argue their right to religious freedom meant they could refuse to pay taxes going to hospitals that perform abortions, undermining public healthcare on the whole. Blakeney said that person’s right to freedom of religion can and should be overridden in that case and many today would still agree with him.

Just a few years later, in 1986, Grant Devine would make Saskatchewan only the second province in Canada (Quebec being the first) to evoke Section 33. He passed a bill imposing a contract agreement on the Saskatchewan Government Employees’ Union (SGEU), restricting their right to strike.

February 3, 1986 Saskatoon Star Phoenix.

Sound familiar? Lol.

Saskatchewan evoked the notwithstanding clause again in 2017, when the Court of Queen’s Bench determined it was unconstitutional to fund non-Catholic students to attend Catholic separate schools.

“Provincial government funding of non-(Catholic) students attending (Catholic) schools is a violation of the state’s duty of religious neutrality under s. 2(a) of the Charter… Provincial government funding of non-(Catholic) students attending (Catholic) schools is a violation of equality rights under s. 15(1) of the Charter.” - Saskatchewan Justice Donald H. Layh, Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB

The Sask Party also framed that decision as one involving parents’ “rights”, though we all knew it was really about appeasing rural Saskatchewan.

“The legislation introduced today invokes section 33 of the Charter of Rights and Freedoms to require all provincial funding for schools to be provided under The Education Act, 1995 without any distinction based on religion, notwithstanding sections 2(a) and 15 of the Charter and sections 4, 12 and 13 of the Human Rights Code.” - ‘Notwithstanding Clause Invoked to Protect Parents' and Students' Rights’, Govt of Saskatchewan news release, November 8, 2017

In other words, the Sask Party protected the rights of non-Catholic students to keep going to Catholic schools. It was contentious, but wasn’t exactly a game-changer.

It certainly didn’t newly restrict the rights of Saskatchewan people.

Which brings us back to today. Let’s look at a different Angus Reid poll, one not cited by Sask Party fanatics or their ethereal leader.

In a January 2023 release entitled Notwithstanding Clause: Majority see increased use problematic, would pursue abolition, the Sask Party’s beloved Angus Reid shows us that like most Canadians, Saskatchewan residents don’t love the idea of their provincial government overriding nationally-protected rights and freedoms.

In fact, according to Angus Reid, most Saskatchewan residents who know what it is say the notwithstanding clause shouldn’t even exist anymore:

Speaking of knowing what it is, here’s how Saskatchewan respondents answered the question,

“Thinking about this notwithstanding clause, and based on what you have read, seen, or heard about how it is used, would you say the use of the notwithstanding clause generally weakens or strengthens the constitutional rights and freedoms of Canadians?”

The fact 1 in 4 Saskatchewan people don’t know the answer to that question, further tells me that 1 in 4 Saskatchewan people don’t know what the notwithstanding clause actually is.

The more Scooter keeps babbling about it, the faster they’re going find out. My guess is that once more people know what it actually means - Scott Moe taking it upon himself - IN 2023! - to strip the protected human rights of a specific group of Saskatchewan people, they’re not going to be fans either.

So where’s this shit coming from?

I started working with John Gormley in February 2007. By the time I reached my first year anniversary in that hellhole, I was eyeballs-deep observing the Sask Party’s transition to government, for which Gormley played a significant, hidden advisory role. He absolutely advised Brad Wall on one of the Sask Party’s first big political moves: essential services legislation. I know, I heard it all the time.

I remember Gormley chortling about how it didn’t matter what the Supreme Court said about how that law impacted the rights and freedoms of Saskatchewan workers, because the Sask Party would evoke the notwithstanding clause.

I had no idea what that meant, but distinctly remember the glee with which Gormley talked about it and thinking it was weird that a provincial government could just reject the Supreme Court and do what it wants.

Gormley didn’t get his way in 2007 and 2008 (in fact in the below article he attempts to distance himself from that time, referring to the original essential services legislation he helped create as “flawed”), but he couldn’t resist amplifying it when Brad Wall finally did do his bidding:

February 6, 2015 Regina Leader Post

This kind of political repression doesn’t happen in a vacuum. It doesn’t spring out of nowhere. This is the work of an organized power structure that must be completely dismantled if Saskatchewan is to have any kind of progressive future, because the Sask Party and their greasy insiders, including their chief propagandist, have been jonesing to restrict the human rights of those they don’t agree with for decades.

If Scott Moe has ever tried to show us who he is, it’s now. Apparently killing someone and getting away with it wasn’t enough - this time I’m positive that if Scooter is allowed to roar down this dirt road any drunker, further or faster, it’s going to backfire spectacularly.

Why?

Because Saskatchewan is too small for this garbage.

There’s a million people here and virtually every single one of us has a brother, sister, niece, nephew or grandchild - a loved one - whose rights, dignity and humanity are falling victim to the latest culture war kicked off by Scott Moe.

I wholeheartedly believe that in Saskatchewan, Grandpa may not appreciate the fact you’re gay or queer or trans, but he appreciates other people hating on his grandkid even less. I also think that even if Grandma does not understand your choices, or wishes you were making those choices differently, she will never put up with someone else - especially some janky politician - setting her grandchild up for bullying, mental anguish and heaven forbid, suicide.

I do not believe the majority of Saskatchewan people will put political ideology over the wellbeing of their family members. Yes, we learned during the pandemic that there will be a loud, evidence-rejecting fringe of lunatics claiming their trans family member is going to burn in hell… but that’s not new.

What’s new, unequivocally, is a nutjob like Scott Moe overriding Canadian law to strip Saskatchewan people of their rights and I do not believe the majority, Sask Party faithful included, will let that go.

Smart, serious and democratic politicians never use public polls to create and implement public policy, which is a serious and challenging job that can have life-altering outcomes for the voters who granted the politician’s request to do the job on their behalf.

Populism is a political ideology that claims to promote the interests and opinions of ordinary people, typically through the simplistic division of society into 'us' versus 'them’. Poll results often neatly depict that division of society, so are a useful tool for promoting populism.

Populism, like poll results, does not take into consideration long-term consequences or expert analysis. When you combine the fleeting nature of opinions with the fact that information on current affairs comes at us from a fire hose, you can see why a politician who goes all in on populism will, at best, only make short-term gains.

Scott Moe’s decision to launch an attack on Saskatchewan’s LGBQT2S+ community is one of the most wrongheaded examples of political populism you’re ever going to see in your life. Even if it results in some kind of sick short-term gain for Scooter, perhaps appeasing the rabid right-wing flank he’s been running scared from for years, it will become an even darker part of his already brutal legacy.

He will go down as one of the worst premiers in history and if he pulls this stunt, it will be the biggest boulder around his neck as his legacy sinks to rock bottom.

Good governance requires careful deliberation, evidence-based decision-making, and consideration of a broad range of perspectives, including those of experts and marginalized groups.

Can we please, please get back to that, Saskatchewan? Can we not find mature, thoughtful leaders more interested in maintaining solid public services and infrastructure, than dictating and controlling how people - yes, even teens - live their lives?

“Jumping the shark” is the cliche that keeps popping into my mind on this one. Perhaps “tipping point” is better. Either way, it can’t come soon enough.

Have a great weekend,