Derogation provision | Trudeau considers turning to the Supreme Court

“We are trivializing the suspension of fundamental rights”, worries the Prime Minister.

(Ottawa) Prime Minister Justin Trudeau believes that the use of the notwithstanding clause by governments such as Quebec and Ontario, which have used it in recent years, needs to be better regulated. He is also seriously considering the idea of ​​submitting a reference to the Supreme Court of Canada on this delicate question.

The use of this provision by certain provincial governments, which has the effect of suspending the fundamental rights of a group of individuals, has become an almost commonplace affair in the country, notes Justin Trudeau, in an exclusive interview granted to The Press this week. This trend worries him to the highest degree at a time when we are witnessing a rise in populism in certain regions of the world.

Result: the Prime Minister is of the opinion that in-depth reflection is required on the use of this provision enshrined in the Constitution, which must remain “a tool of very last resort”.

Justice Minister David Lametti is assessing the ins and outs of such a move before the highest court in the land, the prime minister said.

Sometimes called the “notwithstanding clause”, the notwithstanding clause gives the power to the government invoking it to exempt a law from any legal remedy for a period of five years, even if this law violates certain rights guaranteed by the Charter.

“A reference to the Supreme Court of Canada can be made and I can tell you that our Minister of Justice, David Lametti, a former dean of the faculty of law at McGill University, a proud Quebecer, is thinking precisely about the avenues available to us on this. […] The idea of ​​having a charter of rights and freedoms is to protect us against the tyranny of the majority. »

The controversial decision by Doug Ford’s government in Ontario to peremptorily use the notwithstanding clause to prevent some 50,000 education support workers in the province from exercising their right to strike in the fall last, has accelerated such thinking. The opprobrium caused by this move forced Doug Ford to back down two weeks later.

“We are trivializing the suspension of fundamental rights. That’s what concerns me,” said Mr. Trudeau, weighing his every word. “It was completely wacky, what Doug Ford did,” he added.

He gave the example of the rise of populism south of the border, which allowed Donald Trump to win. The former president used his tenure to appoint a majority of conservative justices to the US Supreme Court. Last year, the most US court overturned the judgment Roe v. wade of 1973, which guaranteed the right of American women who so wished to obtain an abortion.

In the case of the Ford government, this was the second time it had used the notwithstanding clause. It had also done so in 2021 in order to maintain the Election Protection Act, which bans third-party ad spending in the province one year before the election. But the premier had also considered using section 33 of the Canadian Charter of Rights and Freedoms to force a reduction in the size of Toronto City Council in 2018.

The gist of the debate

In Quebec, the Legault government has used the notwithstanding provision in a peremptory manner twice so far, when it adopted Bill 21 on the secularism of the state and when it adopted the Bill 96, which aims to modernize the Charter of the French language and decrees that the only official language of Quebec is French.

This a priori use of the derogation provision differs, for example, from that made of it by Robert Bourassa in Bill 178, in 1988. His government then invoked it in order to protect the provision of the Charter of the French language which prevented outdoor signage in a language other than French after the Supreme Court declared it unconstitutional.

During the interview, which took place at the Université du Québec à Trois-Rivières at the end of a visit intended to highlight innovation in Mauricie in the electric car sector, Mr. Trudeau explained the main objectives of his government’s policy on immigration, underlined the need for democratic countries for a victory for Ukraine in the war between it and Russia and showed little interest in reading his book former finance minister Bill Morneau, which hit bookstores this week.

The Prime Minister was particularly animated when asked about the tendency of some provinces to use the notwithstanding clause to pass bills and shield them from legal challenges.

“The notwithstanding clause, what it allows to do when a provincial government [l’utilise] – and even a federal government could use it – is to put aside the fundamental rights of citizens such as freedom of expression, freedom of conscience, and all that, because we want to pass a bill which goes against these fundamental rights,” said Mr. Trudeau.

He asserted that “extreme situations” may very well arise where a government could not do otherwise than invoke it, without however specifying the justifiable circumstances. He also acknowledged that without the inclusion of this provision in the Constitution – a request of the premiers of the western provinces – his father, former Prime Minister Pierre Elliott Trudeau, could not have repatriated the Constitution in 1982. .

But it must remain “a measure of last resort,” and no government should use it in a way that prevents the courts from deciding.

“We have lost sight of the essential in this debate,” he lamented.

“By using the derogation clause in this way, we have reduced the political costs of the suspension of fundamental rights. That’s why it worries me,” he said.

“When you see the populists shouting ‘freedom, freedom, freedom’ without really understanding that the freedom to marry the man and the woman you want, the freedom to choose whether you want to have an abortion or not , these are much more fundamental freedoms than my freedom to walk around unvaccinated on a plane, ”he concluded.