A little over a year ago, Prime Minister Justin Trudeau dropped a little political bombshell by revealing that his government was considering further regulating the use of the notwithstanding clause to prevent provinces from preemptively using this controversial clause in the Canadian Constitution.
“The idea of having a charter of rights and freedoms is to protect us against the tyranny of the majority,” he said in an interview with The Press. He said he had instructed his Minister of Justice at the time, David Lametti, “to reflect precisely on the subject of the avenues available to us” to limit the suspension of fundamental rights by provincial governments, including a possible dismissal of the said subject to the Supreme Court of Canada.
In defending the idea of a referral, Mr. Trudeau initially cited the use of the notwithstanding clause by the Ontario government of Doug Ford to pass a law suspending the right to strike of certain workers in the ‘education. However, Mr. Ford’s action caused an outcry in his province, and he was forced to revoke his law shortly after its adoption. Mr. Trudeau’s choice to support his thoughts in a Quebec media outlet could only be interpreted as a provocation by the CAQ government, Canadian champion in the use of this clause. His exit had also earned him a severe reprimand from François Legault, who had described it as a “frontal attack” against the Quebec nation.
Alas! Mr. Lametti never moved forward with a referral to the highest court before being demoted to a backbencher by Mr. Trudeau last July. Was it out of fear of not getting the desired result?
Announcing his resignation as an MP last month, Lametti called for a constitutional amendment to prohibit the preemptive use of the notwithstanding clause. “We must stop making a scapegoat of the Anglo-Quebec community,” he said in his farewell speech to the House of Commons, in reference to the Act respecting the official and common language of Quebec, better known as Bill 96. The Canadian Charter of Rights and Freedoms, he added, “is not an option, and the preventive use [de la disposition de dérogation] is a way of saying that the Charter is optional. It is therefore with a feeling of unfinished business that Mr. Lametti left the federal capital.
The tabling this week of a bill aimed at renewing the use of the exemption provision for the State Secularism Law (or Law 21) for a new period of five years will do nothing to calm concerns defenders of the Charter within the federal Liberal caucus. By tabling his bill, the Minister responsible for Secularism, Jean-François Roberge, described Mr. Lametti’s as “very, very, very bad idea” and issued a warning to federal politicians. who would support it. The notwithstanding provision “is part of the Canadian balance, that is to say having federal laws, having a strong federal Charter of Rights and Freedoms, but having a counterbalance with a clause renewable exemption [tous les] five years. It allows Canada to function and it allows strong nations like Quebec to make their differences heard.”
However, the debate over the merits of the notwithstanding clause is taking on a completely different tone in the rest of Canada since the Saskatchewan government invoked it last fall to protect its controversial rights law. parents against any legal challenge. This law, which prohibits children aged 15 and under from changing their first or last name at school without their parents’ authorization, is part of a context of cultural war raging throughout North America right now. which concerns the rights of trans people.
The recent announcement by Alberta Premier Danielle Smith of her intention to pass in her province a law similar to that of Saskatchewan, which would also ban operations and hormone therapy for young trans people, has provoked demands for Ottawa to intervene to protect this vulnerable population against the desires of conservative provincial governments. Mme Smith has not said whether she plans to follow Saskatchewan in preemptively invoking the notwithstanding clause, but Alberta Liberal Minister Randy Boissonnault, who is leading the battle against Mr.me Smith, on behalf of his government, is already threatening to request a referral to the Supreme Court to prevent it.
This week, Mr. Roberge said he did not perceive an “appetite” among federal politicians to reopen the Constitution. He is probably right, in the broad sense. But as federal Transport Minister Pablo Rodriguez recently noted, “there are a lot of caucus members [libéral] who share [le point de vue de M. Lametti]like many Canadians.
And in a context where recourse to the exemption provision is increasing in the country, they risk making more and more noise.