Who remembers the compromise that convinced the English-speaking provinces to accept the Canadian Constitution in 1982?
And who remembers that Quebec did not sign it? Not everyone, it seems.
In interview with The Press last week, Justin Trudeau confirmed that he is considering asking the Supreme Court to clarify the use of the notwithstanding clause, which allows a province to shield a law from sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms. After five years, this mechanism must be renewed, and therefore justified by the government to its population.
It was this legal shield that convinced eight provinces at the time to join the project. They were reassured by being told that despite the Charter of Rights, Parliament would have the last word.
That said, Mr. Trudeau’s statement must be put into perspective. Because he is not in such a hurry to take action, he does not control the final decision and his attack is less frontal than it seems. Especially when compared to others.
Mr. Trudeau is of course reacting to Quebec’s laws 21 and 96, respectively on secularism and French. But there’s also Ontario, where the Ford government invoked the provision last fall to prevent teachers from striking and to halve the size of Toronto’s city council in the midst of the 2019 election campaign.
We understand the federal government’s discomfort with this flippancy and the fear that this exceptional measure will become more and more frequent.
In Ontario, the storm has passed. In Quebec, the challenge to the laws continues. In the pleadings at first instance, opponents of the ban on religious symbols argued that the derogation should be marked out. Everything indicates that these steps will lead to the Supreme Court.
This puts the intention of the Trudeau government into context. Moreover, he wanted to calm things down on Monday. After all, his dismissal would only accelerate this debate. And he’s not in such a rush to do it. Last November, his Minister of Justice, David Lametti, had made similar comments. If he had been in a hurry, his referral request would already be in the mail.
Mr. Trudeau would frame the debate by choosing the questions submitted to the Supreme Court. Still, he doesn’t control their response.
Judging by Mr. Lametti’s comments, the federal government would like this shield to be used only in response to a judgment. And not preventively, as MM. Legault and Ford. The more provinces use the waiver for controversial reasons, the more support the Liberals will have.
Their distinction, however, is not so clear cut. Because if a government invokes the provision upstream, it is in reaction to existing case law. The resort is kind of a bit responsive too.
And even when the provision is used in advance, it does not in principle prevent a court from saying whether the law would have been constitutional without this shield.
What Mr. Lametti wants to make systematic is not impossible at this time. It is therefore both less necessary than he claims and less dangerous than he is accused of.
The clash with the provinces is elsewhere.
In the Superior Court, opponents of the law proposed to go much further.
For simplicity, they made two arguments.
The first: infringements of fundamental rights would be so great that they should never be tolerated, even under derogation. In a theoretical way, they used the extreme example of a racist and segregationist policy. But in practice, this would involve a court assessing the seriousness of a rights infringement and then deciding whether the derogation should stand. The judiciary would therefore have the last word. It would shake the 1982 compromise and the balance of power in the country.
The second argument consisted not in marking out the derogation, but rather in circumventing it. Principles of case law, such as the protection of minorities, could be invoked. Since they are not in the written Constitution, the waiver does not apply to them. They would thus make it possible to invalidate a law, despite the derogation.
This strategy was tested in the Ontario Court of Appeal when Mr. Ford shrunk Toronto City Council. The judges did not accept it. Assessing these unwritten principles would open the door to “irreparable” misinterpretations, they warned.
Even if Mr. Trudeau remains faithful to his values, he also wants to consolidate his support in Quebec and take advantage of the unpopularity of Doug Ford’s exemptions in Ontario, while forcing his opponent Pierre Poilievre to choose his side.
Under Mr. Poilievre, the Conservatives have ended their neutrality on Bill 21. Their new leader promises to intervene in the inevitable challenge before the Supreme Court. But in the conservative family, “judicial activism” is often criticized. What power should Parliament retain? The positioning of Mr. Poilievre could be less easy than expected.
So there is a bit of a strategy behind Mr. Trudeau’s removal plan. But basically, Mr. Legault’s main concern should not be his federal counterpart. Rather, he should fear further legal challenges that could weaken a compromise that, more than 40 years ago, was already deemed insufficient.