Outraged by the use made by the governments of Quebec and Ontario of the notwithstanding clause enshrined in the Canadian Charter of Rights and Freedoms, Justin Trudeau returned to the charge, hoping that the Supreme Court would emasculate this remnant of parliamentary sovereignty.
In a long interview with parliamentary correspondent Joël-Denis Bellavance, the Prime Minister raised the possibility of his government asking the Supreme Court, in a reference, to limit the use that governments can make of this provision at the heart of the compromise which allowed the premiers of the provinces of English Canada to accept the patriation of the Canadian Constitution in 1982. The federal Minister of Justice, David Lametti, is preparing the ground for this return, said Justin Trudeau.
Two Quebec laws are in the crosshairs of the Trudeau government: Law 21 on the secularism of the State and Law 96 on the official and common language of Quebec, French. Both of these statutes make use of section 33 of the Charter of Rights, which shields them from legal challenges for alleged infringements of guaranteed rights.
For Justin Trudeau, the notwithstanding provision must remain “a tool of very last resort” and should not be used preventively, without the courts being able to rule on the conformity of the law with regard to the Charter.
As the political path to constitutional amendment is blocked, what better than to ask the judges to do the job, we say to ourselves, although it is doubtful that this is really their role. Some jurists in English Canada, including David Lametti, have thus developed an inventive doctrine to circumvent the state of the law as established in 1988 by the Ford judgment of the Supreme Court.
The Lévesque government had systematically resorted to derogation for all laws passed by the National Assembly. The Supreme Court had ruled such use constitutional, specifying that recourse to section 33 had to meet requirements of form and not of substance. In other words, the National Assembly, like all other legislatures, including the House of Commons, did not have to provide justification for using the notwithstanding clause, nor did it use it until after a decision of a tribunal.
Doug Ford’s government in 2021 used the waiver for a law that limited third-party ad spending a year before fixed-date elections, essentially crippling free speech for unions and business lobbies. Nothing controversial. He had considered doing this for a law reducing the size of the Toronto City Council in 2018. Finally, Doug Ford put it into a bill to stop 50,000 education support workers from going on strike only to then withdraw it. . “It’s completely crazy,” said Justin Trudeau. However, whether or not we agree with the gesture of the Ford government, this preventive use of the derogation is perfectly in line with the intentions of the signatories in 1981. It was necessary since a decision of the Supreme Court of 2015 bound the right of association, guaranteed by the charter, to the right to strike. We are in a situation where the right of association can come into contradiction, in the event of strike, with the right of the children to attend the school. For better or for worse, special back-to-work laws or the threat of imposing one were part of the government’s arsenal of negotiations with its employees, in Quebec as elsewhere.
The overriding provision is a tool that makes it possible to democratically arbitrate conflicting rights and to make choices that promote the social development of the Quebec nation. It is not always up to judges, appointed by Ottawa, who are neither infallible nor always unanimous, to decide on behalf of the people’s elected representatives what constitutes the common good.
The Legault government reacted strongly to this outing by Justin Trudeau, calling it a “frontal attack” against the Quebec people and their democracy. However, we cannot see a novelty in this desire, expressed by Justin Trudeau, to ask the judges to modify the Constitution with the aim, above all, of limiting the political freedom of Quebecers.
We are awaiting this year—possibly in June—the decision of the Quebec Court of Appeal on Bill 21, a judgment that must consider the question of derogation. Whatever the decision, it will go to the Supreme Court, where the Trudeau government, he has promised, will make its case. A dismissal would not really speed things up.
Within a post-national state driven by an exacerbated conception of individual rights, it may be difficult, if not impossible, for a national minority to preserve its character as well as the attributes of a nation-state.