Posted at 5:00 am
(Ottawa) Prime Minister Justin Trudeau believes the use of the exception clause by governments like Quebec and Ontario, which have used it in recent years, needs to be better regulated. He is also seriously considering filing a referral with the Supreme Court of Canada on this sensitive issue.
The use of this provision by certain provincial governments, resulting in the suspension of the basic rights of a group of individuals, has become an almost everyday affair in the country, Justin Trudeau notes in an exclusive interview granted to La Presse this week. This development worries him greatly at a time when we are witnessing a rise in populism in certain regions of the world.
Outcome: The Prime Minister believes that thorough reflection is needed on the application of this constitutional provision, which must remain “an instrument of last resort”.
Justice Secretary David Lametti is considering the details of such a move before the country’s highest court, the prime minister said.
Sometimes referred to as the ‘not prejudice clause’, the not prejudice clause gives the government invoking it the power to exempt a law from any remedy for a period of five years, even if that law violates certain rights guaranteed by the Charter.
“A reference can be made to the Supreme Court of Canada, and I can tell you that our Attorney General, David Lametti, a former dean of law school at McGill University, a proud Quebecois, is thinking carefully about the opportunities that are available to us to. […] The idea of a charter of rights and freedoms is meant to protect us from the tyranny of the majority. »
The Doug Ford government’s controversial decision in Ontario last fall to grant some 50,000 education workers in the province the benefit of the clause has accelerated this thinking. The shame caused by the move forced Doug Ford to back down two weeks later.
“We trivialize the suspension of fundamental rights. That worries me,” said Mr. Trudeau, weighing each word. “It was absolutely crazy what Doug Ford did,” he added.
There should be a political consequence after such a decision. But we are experiencing a certain trivialization of this repeal of rights. And when you combine that with the rise of populism around the world, you see there are concerns about what can be done.
Justin Trudeau, Prime Minister of Canada
He gave the example of the rise of populism south of the border that allowed Donald Trump to win. The former president used his tenure to appoint a majority of conservative justices to the US Supreme Court. Last year, the US Supreme Court Roe v. Wade’s 1973 granting abortion rights to American women who so choose.
In the case of the Ford government, this was the second time it had used the no matter clause. He had also done so in 2021 to keep the Election Protection Act in place, which bans third-party ad spending in the country a year before the election. However, the Prime Minister had also considered using Section 33 of Canada’s Charter of Rights and Freedoms to force a reduction in the size of the Toronto City Council in 2018.
The heart of the debate
In Québec, the Legault government has so far applied the rule vigorously, notwithstanding the provision, when it passed Bill 21 on the state’s secularism and when it passed Bill 96, which aims to modernize the charter of the French language and decrees that the sole official language of Quebec is French.
This a priori application of the derogation provision differs, for example, from that of Robert Bourassa in Bill 178 in 1988. His government invoked it at the time to protect the provision of the French Language Charter which prevented outdoor signage in any language other than French after the Supreme Court ruled them unconstitutional.
During the interview, which took place at the end of a visit to the Université du Québec à Trois-Rivières aimed at highlighting innovations in Mauricie in the electric car sector, Mr. Trudeau explained the main goals of his government’s immigration policy, underlining the need for democratic countries to win the Ukraine at war between her and Russia and showed little interest in reading former Treasury Secretary Bill Morneau’s book, which hit bookstores this week.
The Prime Minister was particularly excited when asked about the tendency of some provinces to use the notwithstanding clause to pass bills and protect them from legal challenge.
Many want to portray this as a fight between the federal and state governments or even between left and right. That’s not what it is about.
Justin Trudeau, Prime Minister of Canada
“Notwithstanding the clause, what allows if a state government [l’utilise] – and even a federal government could use it – is to override the basic rights of citizens like freedom of speech, freedom of conscience and all that, because we want to pass a bill that goes against those basic rights,” Mr Trudeau said.
He claimed that “extreme situations” could very well arise when a government could not help but invoke them, but without specifying the justifiable circumstances. He also acknowledged that his father, former Prime Minister Pierre Elliott Trudeau, could not have repatriated the Constitution in 1982 without the inclusion of this provision in the Constitution – a request from the Prime Ministers of the western provinces.
But it must remain “a measure of last resort,” and no government should apply it in a way that prevents the courts from deciding.
“We have lost sight of what is essential in this debate,” he lamented.
“By using the exception clause in this way, we have reduced the political costs of suspending fundamental rights. So it worries me,” he said.
“When you see the populists shouting ‘freedom, freedom, freedom,’ without really understanding, the freedom to marry the man and woman you want, the freedom to choose whether you want to have an abortion or not, these are far more fundamental freedoms than my freedom to walk around on an airplane unvaccinated,” he concluded.
What is a reference to the Supreme Court of Canada?
The federal government may submit a submission to the Supreme Court of Canada to obtain its clarification of legal issues. Jean Chrétien’s previous Liberal government asked the country’s Supreme Court a series of questions in 1997 about the procedure to be followed in the event of a vote in favor of Quebec’s secession. This step was taken after the province held the 1995 referendum, which ended in a narrow victory for the No side. The Chrétien government used the Supreme Court’s replies to draft and pass the Clarity Act referendum in 2000.
The different provision
Section 33 of the Canadian Charter of Rights and Freedoms provides that the Parliament of Canada or the legislature of any province may pass a statute expressly providing that notwithstanding Section 2 or Articles 7 through 15 of the Charter, it or any provision of it be valid. These items usually protect:
- fundamental freedoms such as freedom of expression, religion or association;
- legal guarantees such as the right to life, liberty and security of person;
- Equality regardless of discrimination
A debate between lawyers
According to constitutional lawyer Benoît Pelletier, more and more lawyers in the country are advocating that the impatience clause should not be used by governments as a preventive measure. Mr. Pelletier says he personally supports this provision in its current form, which Quebec has at its disposal as a tool to assert its specificity, and believes the Trudeau administration can provide a reference to the Supreme Court on the issue. And in his opinion, a Supreme Court ruling in a referral would be enough to regulate its use.
“The clause exists and it’s still pretty clear. In the Ford judgment, the Supreme Court of Canada had specified that the exemption clause was only subject to formal and non-substantive conditions. In other words, the Supreme Court said it was not necessary for the legislature to justify the use of the variance clause. But there are legal scholars who say that the Ford decision (of 1988) should be revised and the Supreme Court should at least limit its application to curative rather than preventive contexts,” he said. Mr. Pelletier argued that the pre-emptive application of this provision does not prevent the courts from reviewing cases, as was the case with Bill 21. But the courts cannot invalidate the contested law.