Prime Minister Justin Trudeau has said he might ask the Supreme Court to consider whether the notwithstanding clause in the Charter of Rights and Freedoms is being abused.
That clause permits Parliament and the provincial legislatures to override certain provisions of the Charter if they deem it necessary to protect legislation they consider essential. The override lasts five years unless it is renewed.
The prime minister is concerned at recent attempts by Ontario and Quebec to pre-empt judicial scrutiny of contentious legislation by invoking the clause.
Quebec adopted this procedure to protect legislation banning public employees from wearing religious symbols at work, and to broaden French-language requirements.
Ontario threatened use of the clause to impose back-to-work legislation on school workers, though in the face of widespread opposition, the government backed down.
The notwithstanding provision was drafted into the Charter by the prime minister of the day, Pierre Trudeau, after several premiers expressed concern.
In Quebec, René Lévesque’s government feared that the province’s position in Confederation would be threatened by a dilution of its law-making powers.
Alberta and Saskatchewan believed the Charter would greatly broaden the scope of judicial review by the courts, and saw in this a diminished role for parliamentary government.
Trudeau’s concern is that the notwithstanding clause was meant as a last resort. It was never intended as a loophole to avoid appropriate public scrutiny.
Overuse of this mechanism, he fears, weakens the ability of the courts to protect the rights of minorities and other disadvantaged groups.
While this is a legitimate concern, how pressing it is in practice can be debated. The federal government has never used the clause.
Leaving aside Quebec, where for several years in the 1980s every piece of legislation contained a notwithstanding section, there have been relatively few instances of the clause being invoked.
In the 40 years since the Charter was enacted, outside Quebec the clause has been passed into law only five times.
Even so, three of those occurred in recent years which is why, in part, the prime minister is concerned.
So could the Supreme Court take up this issue? Likely not to the point of invalidating the clause in its entirety.
That would amount to amending the Charter, and the requirements for doing so are formidable.
But could the scope of the clause be narrowed, perhaps by constraining the circumstances in which it may be used?
That might be possible, but would it be wise? While political implications may not be something the court should be concerned with, it certainly is something the prime minister should give thought to.
The consequences in Quebec would be far-reaching. The current premier of that province, François Legault, had this to say: “Mr. Trudeau’s desire to do this is a frontal attack on our nation’s ability to protect our collective rights. Quebec will never accept such a weakening of its rights. Never!”
One of the few blessings of the COVID era has been the decline of the Quebec separatist movement. Does the prime minister want to breathe new life into it?
Again, we see in the recent passage of Alberta’s Sovereignty Act, however mischievous and unwarranted, an attempt to build a wall around the province.
We’ve been unimpressed with that province’s new government and its error-prone administration, but here also there are local sensitivities to consider.
When the Charter was enacted, the notwithstanding clause was a necessary, if perhaps unpopular adjunct to the Charter of Rights and Freedoms.
On balance, while there are reasons for concern about its overuse, there are also risks in reopening what must be a contentious issue.
Pierre Trudeau understood this. If his son wishes to differ, he must show us what has changed.
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