Canada's Prime Minister Justin Trudeau looks on during a visit to the tech sector firm Xanadu Quantum Technologies in Toronto on Jan. 23.CARLOS OSORIO/Reuters
Prime Minister Justin Trudeau stirred up a constitutional hornet’s nest this week when he said that his Justice Minister is looking for ways to curb the chronic overuse of the notwithstanding clause by some provinces, and that Ottawa might ask the Supreme Court for a reference on the matter.
The loudest buzzing came from Quebec, where Premier François Legault immediately condemned the PM’s audacity in well-rehearsed language.
“Mr. Trudeau’s desire to do this is a frontal attack on our nation’s ability to protect our collective rights,” Mr. Legault tweeted. “Quebec will never accept such a weakening of its rights. Never!”
Understood. But Mr. Trudeau is right to point out, as he did this week in an interview in La Presse, that the use of the notwithstanding clause by provincial premiers has become “trivialized.”
The clause, Section 33 of the Constitution, allows Parliament and the provincial legislatures to override a long list of Charter rights – everything from freedom of expression to the presumption of innocence and protection from arbitrary arrest – when passing legislation.
It’s a time-limited option that has to be adopted by a legislature and renewed every five years. It is currently in effect in two signature Legault-government laws: Bill 21, which bans some public employees from wearing religious headgear and symbols on the job; and Bill 98, which toughens the province’s Charter of the French Language.
Both those laws are controversial – Bill 21 in particular. A Quebec Superior Court judge called it cruel and dehumanizing in a 2021 ruling (while being obliged by the notwithstanding clause to let the law stand).
But the breaking point for Mr. Trudeau apparently came one province west of there, in the form of the failed effort last fall by Ontario Premier Doug Ford to include the notwithstanding clause in back-to-work legislation targeted at school workers who were threatening to walk off the job.
The use of the clause would have prevented the workers’ union from challenging the back-to-work order in court – eroding the right to strike. Mr. Ford backed down in the face of widespread public criticism and the threat of a general strike if the bill passed.
Mr. Ford had already invoked the notwithstanding clause twice before, and Mr. Trudeau is right to worry about a growing tendency among premiers to use the measure in inappropriate situations. His mention of a reference to the Supreme Court implies that he wants the high court to weigh in on the clause’s use.
There is a debate about whether Section 33 should be invoked only after a court finds an existing law has violated the relevant sections of the Charter, or whether the common practice of inserting it into bills pre-emptively, in order to inoculate them against court challenges, is reasonable.
Justice Minister David Lametti made his feelings known last November, when he said, “[Section 33] was meant to be a last word for a legislature to exercise parliamentary sovereignty. If it’s used at the beginning, it guts Canadian democracy, it means the Charter doesn’t exist.”
The idea of making it more complicated for governments to deliberately violate fundamental Canadian rights in ideologically driven legislation is appealing. It would be better if the system forced them to balance individual rights with collective rights in an unprotected bill, and then if a court ruled against it they went to the people to ask whether the use of Section 33 would be appropriate.
Other legal scholars beside Mr. Lametti are questioning the pre-emptive use of the notwithstanding clause. A reference to the Supreme Court could provide not only clarity on the issue, but could also help to discourage the practice.
In the end, though, Section 33 is here to stay, regardless of any Supreme Court reference.
Quebec’s experience has shown how easy it is to abrogate constitutional rights if such arbitrary measures have broad public support. But Mr. Ford’s recent experience demonstrates the opposite: He was clearly embarrassed and forced to retreat by the immediate and fierce backlash against his attempt to corrode the right to strike.
A Supreme Court reference is a nice idea, but it remains up to politicians and voters to raise the political costs of invoking the notwithstanding clause irresponsibly.