It is not only the debate on gender identity in schools that the Premier of Saskatchewan, Scott Moe, relaunched this week, but also the entire dispute surrounding the increasingly frequent use – and in a way preventive — to the exemption provision. Uses of section 33 of the Charter of Rights and Freedoms which Justin Trudeau already opposed. And this latest invocation could serve as a new pretext for the Canadian Prime Minister to try to tie the hands of provincial governments once and for all.
They have used the notwithstanding provision eight times in the last six years in order to avoid (or protect themselves against) legal challenges which would denounce an infringement of rights enshrined in the Charter.
The government of Quebec used it for its law 21 on state secularism, as well as its law 96 on the official and common language of Quebec, French. That of Doug Ford, in Ontario, notably used it last year to prevent education support employees from walking out — before backing down.
Scott Moe, for his part, has just urgently recalled the Legislative Assembly, two weeks earlier than expected, to table a bill on Thursday which will include the override provision to require parental consent from children under the age of 16 year olds who would like to change their first name or pronoun at school. A response to the injunction imposed at the end of September by a provincial court, which ordered the suspension of this policy while a challenge is heard on the merits.
Justin Trudeau protests against the risk of seeing the provinces “trivializing the suspension of fundamental rights”. In addition to this multiplication of appeals under his reign, it is also and above all against the specific use that certain governments have made of it that the federal Prime Minister has. Secularism, right to strike, gender identity: so many values that the liberal leader refuses to see reinterpreted. And to oppose it, he in turn reinterprets article 33 by maintaining that it cannot be invoked preventively.
We have repeatedly affirmed, right here in this column, the established rights of sexual minorities and transgender people. There is no question of calling them into question today. The parliamentary sovereignty of the legislative assemblies and the National Assembly, enshrined in the Constitution, must however be respected and preserved.
Justin Trudeau’s Liberals would like to tighten it. The new federal Minister of Justice, Arif Virani, accused Scott Moe of deploying a “dramatic option” which should only be a “last resort”.
His parliamentary secretary, James Maloney, came to confirm out loud what the federal Liberals think. “We are strongly against the preemptive use of the notwithstanding provision in any circumstances. The notwithstanding provision is about protecting minority rights, not suppressing them,” he chanted last month. His comments were reminiscent of those also made by former Minister of Justice David Lametti, who was already considering referring the question to the Supreme Court.
The Ontario government, however, quickly abandoned its law restricting the right to strike. At the same time, the federal government lost this handle to go directly to the highest court in the country. The law planned by Scott Moe, in Saskatchewan, has just offered him a new one, which would prevent the debate from taking place when Bill 21 comes to fruition.
Justin Trudeau’s government may be impatient to see the Supreme Court rule, but 35 years ago it confirmed the freedom of parliamentary assemblies to use the “notwithstanding clause”. Its Ford judgment, in 1988, ruled on the question: section 33 would not guide the use of the provision.
It is not impossible that magistrates today take a different look. The Supreme Court’s opinion has evolved in other cases, such as in that of assisted dying between the Sue Rodriguez ruling (1993) and the Carter ruling (2015). But although social mores have evolved, it is not said that this will be the case for the interpretation of the division of powers of the federation enshrined in the Constitution. No offense to Justin Trudeau, this balance cannot be upset so easily.
If he is determined to achieve this, let him conduct proper constitutional consultations, in which all the provinces and First Nations will participate this time, rather than persist in opposing it at every opportunity.
On the contrary, seizing on this most recent use of the notwithstanding provision, by Saskatchewan, to address the Supreme Court now would only be to rush the legal process. Yet this is precisely what Justin Trudeau criticizes the provinces for, accusing them of preemptively bypassing the courts.