The adoption of the Canadian Charter of Rights and Freedoms 40 years ago gave the Supreme Court of Canada greater power to strike down laws passed by duly elected representatives of the people. In order to appease the provincial premiers who feared an “Americanization” of the Canadian legal system, the federal Prime Minister, Pierre Elliott Trudeau, accepted, despite himself, their request to insert the notwithstanding clause in the Charter.
As the NDP premier of Saskatchewan, Allan Blakeney, explained at the time: “The Charter of Rights protects the interests of Canadians and yet, in several essential areas, parliaments and legislatures can override the decision of a court that would undermine the fundamental social institutions of a province or region. This fits perfectly with the argument we have made that it is necessary to strike a balance between the protection of rights and the existence of our institutions, which have served us so well for many centuries. »
An anachronism
Forty years later, it is clear that the vision of the country defended by Mr. Blakeney has taken for his cold. More and more Canadians see the notwithstanding clause as an anachronism that should be struck from the Charter. Hence the indignation aroused in English Canada by the decision of the Government of Quebec to first invoke this provision to protect the Act respecting the secularism of the State against any legal challenge. The idea that a provincial legislature could override the Charter to discriminate against a targeted group by invoking the best interests of the community deeply clashes with the conception that English Canadians have of their country. If it is true that Premier Doug Ford’s Progressive Conservative government in Ontario used the notwithstanding clause in the case of legislation that limits campaign spending by third parties, including unions and lobbyists, it is This is a restriction that hardly has the same scope as Bill 21 in Quebec, which directly targets believers in the exercise of their most fundamental rights by prohibiting certain public sector employees from wearing religious symbols.
What will the Supreme Court of Canada say? If the government of François Legault believed that it had protected Bill 21 from invalidation by the courts thanks to the notwithstanding clause, some prominent jurists in English Canada believe that the highest court in the country could nevertheless agree. to the protesters. The Superior Court took a step in this direction by ruling that Quebec could not use the notwithstanding clause to deprive English school boards in the province of the right to determine their own hiring policies. The case will inevitably end up before the Supreme Court, regardless of the decision rendered in the months to come by the Quebec Court of Appeal. The notwithstanding provision will thus go to trial.
However, the judges belonging to the liberal wing of the Supreme Court are arguing for a more fluid interpretation of rights that takes into account the evolution of the values of Canadian society and that goes beyond the wording of the Charter. On a strict reading of the latter, the use of the notwithstanding clause would be legitimate, provided that it complies with section 33 of the Charter. But according to Toronto lawyer Sujit Choudhry, a majority of judges could however invalidate Bill 21 by invoking “the prohibition against racial discrimination in international law, which has the status of a peremptory norm”.
Some trends
It is certainly risky to predict any decision of the highest court. However, the legal orientations of its current members are well known and allow certain tendencies to be detected. Justices Suzanne Côté, Russell Brown and Malcolm Rowe, as well as Chief Justice Richard Wagner, have a reputation for being more respectful of the prerogatives of the country’s legislatures. Judges Sheilah Martin, Andromache Karakatsanis and Nicholas Kasirer are seen as being more open to a more generous interpretation of rights.
Judge Mahmud Jamal, appointed to the highest court by Justin Trudeau last summer, has yet to make his mark. But his personal experience as a Muslim immigrant suggests that he would be quite sensitive to minority rights. Born in Kenya, and arrived in Canada at the age of 14, he is the first person of color to sit on the Supreme Court. “Like many others, I have been discriminated against on a daily basis. When I was young, I was taunted and harassed because of my name, my religion or the color of my skin,” he wrote in his application to become a Supreme Court judge.
Judge Michael Moldaver will reach the mandatory retirement age of 75 next December. Given the current composition of the Court, the person appointed to replace him could tip the scales for or against the Quebec government and its invocation of the notwithstanding provision in the Bill 21 case.
Mr. Trudeau must already be thinking about it.