In a recent newspaper interview The Press, Justin Trudeau said he was considering a reference to the Supreme Court to restrict the use of the notwithstanding clause. In certain circumstances, it allows elected officials to maintain in force a law which has been invalidated by the courts (or which could be invalidated) in the name of the charter. This case deserves several comments.
Trudeau denies targeting Quebec. Since 1982, however, we have invoked this clause some 70 times. In the CAR, only Ontario, Yukon and Saskatchewan used it, once each. How can we believe here that we are not targeted?
Rights are not absolute
The Prime Minister justifies himself by asserting “that we are trivializing the suspension of fundamental rights”. It’s wrong. Rights are not absolute, otherwise there would be anarchy. For example, one cannot shout fire in a crowded cinema in the absence of a fire and then invoke his freedom of expression to justify himself. What matters is to determine what is the limit of what is reasonable.
Prior to the adoption of the charter, parliamentarians decided where to draw the line. Since then, judges appointed by Ottawa have inherited much of this power. They invalidate democratically passed laws by invoking the charter, thus imposing their conception of reasonableness. From this perspective, the derogation clause is not a permission to violate our rights. Rather, it is a way for parliamentarians to assert their conception of the limits to be respected.
Worse than Trump
Trudeau also justifies himself by invoking the rise of populism in the United States and the election of Trump in 2016. He explains that the latter took the opportunity to appoint partisan right-wing judges. Certainly, but that is exactly what Trudeau is doing by choosing judges who are supporters of multiculturalism. For example, he appointed Aziz Hussein to the Superior Court. In 2021, when he was the lawyer for an anti law 21 group, the latter compared this legislation to the Nuremberg laws which led to the holocaust, nothing less!
The head of the feds also chose Mahmud Jamal for the Supreme Court. When he was a lawyer, he was also involved in challenging Bill 21. At least Trump did not hide from politicizing the courts to his advantage, unlike the federal prime minister.
He says he wants to exact a high political price when a province uses the notwithstanding clause. This blackmail illustrates an essential function of the charter. When the Quebec national minority legislates to protect its culture by using the notwithstanding clause, as with laws 21 and 96, the English-Canadian majority and the federals accuse us of being intolerant who violate rights and freedoms.
The worst of the story is certainly the reaction of Marc Tanguay, the leader of the opposition. He openly encouraged Ottawa to move forward, he who holds a high political office within his nation. Under a charter imposed on us, the Liberal leader is openly working with the feds to curtail the autonomy of his own people!