Preventing the Charter’s early death will take a joint committee, a referendum, and strong public will to protect our democracy

OTTAWA—On Jan. 23, Prime Minister Justin Trudeau triggered a potential future showdown with the premiers of Quebec, Ontario, and potentially others when he asserted that provinces should not pre-emptively use the notwithstanding clause, because it means "suspending fundamental rights and freedoms." Trudeau also indicated that Justice Minister David Lametti is examining ways to combat some provinces' overuse of the clause, and that he could include asking the Supreme Court for a reference on the matter. Almost immediately, Quebec Premier François Legault claimed Trudeau was attacking the province's "democracy and people" by urging limited use of the notwithstanding clause. He asserted that Trudeau was promoting “a frontal attack on our nation's ability to protect our collective rights." However, the prime minister may well have been pointing the finger also at Ontario Premier Doug Ford. Last fall, Ford preemptively used the Section 33 override clause in the 1982 Constitution to prohibit the right to strike of the CUPE education support workers in Bill 28. Back in 2018, Ford threatened to use it to safeguard a unilateral decision to cut the size of the Toronto City Council. Three years later, he again used the clause to protect limits on political spending despite a judicial ruling that the law violated the freedom of expression guaranteed in the Charter. Despite Ford’s recent reversal due to a public backlash, the premier has been unrepentant for preemptively using the clause and has asserted it was legitimate. Ontario’s latest use of the clause added to the fears of the Charter’s early death given Legault claims that the collective rights of the “Quebec nation” legitimized its use. The most notorious example involved the prohibition of teachers and public servants from wearing religious symbols while at work. Not facing much resistance on that law, the Legault government followed with a massive preemptive use of the clause in Bill 96, which substantially limits the use of English—one of Canada’s official languages—in the public service and courts. It also permits inspectors to conduct searches and seizures in businesses without warrants. Until recently, a fervent hope prevailed in some political and legal circles that Section 33 would only be used in extreme circumstances. This hope existed despite Quebec inserting the clause in every new law in the 1980s as a political protest against the repatriation of the Constitution, and despite Saskatchewan invoking it in a 1986 back-to-work law. The father of the current prime minister abhorred the proposed override clause in Section 33 of the 1982 Constitution. Some western provincial premiers threatened Pierre Elliott Trudeau, saying they would not permit his cherished Charter to be included in the repatriated Constitution if the override clause were not part of it as well. His eldest son now has a chance to start a process that could trigger a much more diminished resort to this clause, which is so destructive of the rights in the Charter. To prevent the Charter’s early death, both the federal government and provincial and territorial supporters must start acting outside the usual legislative and judicial box in order to save it. A reference to the Supreme Court should be considered, but it is a risky option in the absence of an evidentiary and factual background when the inevitable appeals regarding Quebec’s Bills 21 and 96 reach the Court in the next couple of years. We need nothing less than a political and deliberative democratic initiative across the country to arouse Canadians to the possibility that their cherished rights are in danger and must be protected by demanding changes in the way the clause is used. Such action could be initiated by the federal government setting up a joint House and Senate committee with cross-country hearings to examine the avenues to limit the preemptive use of the override clause. This joint committee could be modeled after the 1980 Hays-Joyal joint committee. It organized hearings across Canada over 56 days to get feedback from citizens on the federal government’s proposal to repatriate the constitution from the United Kingdom that included a Charter of Rights and Freedoms. It was a success, proven by the fact the proposed Charter was massively supported by the majority of Canadians. A new joint committee could examine four aspects of the use of the override clause. First is the destructive impact of Section 33's pre-emptive use on the Charter's most important rights. Second, it should seek to start a debate in Parliament and in each of the provinces and territories on whether the clause should only legitimately be used following a court ruling against any government action. Third, propose a higher democratic threshold for the clause's use, such as requiring more than a simple majority vote in favour of its use in any legislature seeking to override the court’s ruling. Even the democratic notion of collective rights in Quebec cannot include the view that the executive government alone can abrogate the most fundamental rights of Quebecers without court intervention. Finally, the joint committee should consult Canadians as to whether the federal government should consider a national referendum on allowing Ottawa to utilize the Constitution's disallowance power to prevent the preemptive use of the notwithstanding clause. This means the federal government would request the governor general exercise the power under the still existing but obsolete Section 90 of the Constitution Act 1867. This power was used in the early part of Confederation and not infrequently in the 19th century mostly to prevent a provincial law intruding into federal jurisdiction. It was also used when the federal government felt a provincial law created an injustice, and some of the architects of the Canadian constitution felt it should be used to protect minorities from discrimination. The power to disallow has not been used since 1943, and many constitutional experts regard it as an obsolete part of the Constitution even though it does exist as a legally valid provision. This author does accept that the disallowance is a historic relic that could not be used by the federal government without the majority of Canadians giving their political consent. If Canadians and their political leaders believe that the Charter is a vital protective shield of our democracy, they must start thinking about action like those outlined in this article. History will not forgive those who did nothing while autocracy triumphed. Professor Errol P. Mendes is editor-in-chief of the National Journal of Constitutional Law, president of the International Commission of Jurists, Canadian Section, and teaches law at the University of Ottawa. The Hill Times

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Preventing the Charter’s early death will take a joint committee, a referendum, and strong public will to protect our democracy

Federal, provincial, and territorial governments that support an undiminished Charter must start acting outside the usual legislative and judicial box in order to save it.

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