Every Wednesday, our parliamentary correspondent in Ottawa Marie Vastel analyzes a federal political issue to help you better understand it.
By capitulating to the popular discontent and promising to abandon his special law which used the “notwithstanding clause”, Doug Ford has just deprived Prime Minister Justin Trudeau of the pretext he was waiting for to try to put an end to the recourse precaution of the provinces to this provision of the Constitution. The legal debate will wait. The dispute must remain political. Because apart from raging, Justin Trudeau has few other means or simply does not want it.
The federal response was almost instantaneous. As soon as the Ford government tried, using the notwithstanding clause, to impose a new collective agreement on education support workers in Ontario and forbid them to walk off the job, as soon as Justin Trudeau jumped in with both feet to denounce him. The federal prime minister and his justice minister, David Lametti, have warned Mr. Ford that they are considering going directly to the Supreme Court. Mr. Trudeau even reprimanded his counterpart on the phone, chanting that this preventive action was “unwelcome and inappropriate” and should only occur “in very exceptional circumstances”.
Doug Ford did not fail to point out that the federal Prime Minister was “selective” in denouncing certain provinces more than others – “than Quebec”, he refrained from explaining. He’s not wrong. Mr. Trudeau criticized, but much less fiercely, the precautionary use of the notwithstanding provision by the government of François Legault for identity issues (Bill 21 on secularism and Bill 96 on the French language). . And Mr. Trudeau never picked up the phone to lecture his Quebec counterpart. The context today is different. The Ontario law came to restrict the right to strike, on which the Supreme Court recently ruled, and there are no more elections on the horizon for three or four years.
The cards were thus well placed for Justin Trudeau to finally consider making a reference to the Supreme Court in the hope that the court would come to tighten the possible recourse to section 33 of the Constitution. Doug Ford, however, backtracked, faced with the threat of a multi-sectoral strike and unfavorable polls.
Justin Trudeau finds himself back at square one: waiting for the Act respecting the secularism of the Quebec state — for which the use of the notwithstanding provision is precisely being debated again in the Quebec Court of Appeal this week — to end up before the Supreme Court.
Remedies that would inspire others
In the meantime, several constitutional experts are concerned to see other provinces, or the two largest, multiply the preventive recourses to the provision of derogation.
Laval University professor Louis-Philippe Lampron would have preferred that the Trudeau government go immediately to the highest court in the country. Ontario’s special law made it “a real national issue”.
In addition to recent preventative uses of the provision, Ontario has used it on two other occasions (one discontinued), and Saskatchewan on another occasion. Mr. Lampron sees it as a “multiplication” which suggests that the “taboo” of yesteryear surrounding this recourse has fallen and that he could now “make babies”. In the other provinces or at the federal level, under a Conservative government, for example.
The more the case law is talkative, the more it creates fundamental rights, and the more the need for strong responses through derogation will multiply
His colleague Emmett Macfarlane, of the University of Waterloo, sees it as an “erosion of democratic standards under the populism of the political right”. And he notes that Alberta and Saskatchewan want to take inspiration from Quebec’s approach to the Constitution.
University of Alberta constitutional scholar Eric Adams shares his colleagues’ fears. But he clarified that the possible Alberta “Sovereignty Act” and the “Saskatchewan First Act” do not target rights enshrined in the Canadian Charter (liable to be suspended by invoking the notwithstanding clause), but rather the division of powers enshrined in the Constitution.
The outcry that forced Doug Ford to back down could also serve as a lesson, according to Professor Adams, to those who have considered doing the same. However, the Legault government did not pay such a political price.
In the opposing camp, Benoît Pelletier, of the University of Ottawa, rejects the idea that the Charter of Rights and Freedoms is threatened by provinces that derogate from it. “Those who want to restrict the notwithstanding clause are people who ultimately extol rights and freedoms, in a context where collective interests also sometimes have to be taken into account. »
Patrick Taillon, of Laval University, is of the opinion that it is the judges who should restrict themselves to “a more prudent jurisprudence”. “The more the case law is talkative, the more it creates fundamental rights, and the more the need for strong responses through derogation will multiply. »
Unlikely new interpretation
Justin Trudeau, however, subscribes to the reading of the first experts and their fears of seeing these preventive remedies multiply and suspend fundamental rights.
Unfortunately for him, these same experts predict that there is little chance that the Supreme Court will come to tighten, when the time comes, the possibility of taking advantage of the provision in a preventive manner. His stop Ford, in 1988, ruled that Section 33 of the Constitution did not regulate the use of the notwithstanding provision. Moreover, this interpretation does not prevent the courts from ruling on a violation of fundamental rights – as the Superior Court of Quebec did for Bill 21.
The only other recourse available to Prime Minister Trudeau would be to clarify section 33 himself by amending the Constitution, with the agreement of a majority of the provinces. Which seems excluded from the outset.
Doug Ford challenged him to try, warning him that he would find provincial premiers in his path. “I strongly recommend that he not do it,” he said. Justin Trudeau closed the door by reiterating that Canadians “do not want us to waste our energy reopening constitutional debates”.
The about-face of the Ontario Prime Minister has forced Justin Trudeau to rely on political debate, pending that in the Supreme Court. To hear him summon Pierre Poilievre to denounce Doug Ford’s recourse to the notwithstanding provision, one might think that this reprieve is ultimately only a lesser evil with which Mr. Trudeau is not unhappy to be satisfied.