FAR FROM BEING OBSCURE THIS CLAUSE IS THE PROBLEM IN THE CONSTITUTION
Story by Leyland Cecco in Toronto
• The Guardian
Sunday Nov. 20,2022
At the height of a bitter pay dispute with Ontario education workers earlier this month, the provincial premier, Doug Ford, passed a law that barred employees from striking and imposed a multi-year contract on them – breaching their constitutional rights.
Amid mounting public backlash and the prospect of a general strike, Ford quickly retreated, announcing his government would immediately rescind the bill.
In neighbouring Quebec, the provincial government is in court defending legislation barring public employees such as teachers and doctors from wearing religious symbols – a law that disproportionately affects religious minorities. Rather than backing down from controversy over the law, however, the provincial premier, François Legault, recently won re-election, in part over its popularity.
The two governments’ ability to strip away seemingly fundamental rights comes from a controversial – and uniquely Canadian – constitutional mechanism, known as the “notwithstanding clause”.
It’s been called both an “escape hatch” and a “nuclear bomb”. But with each use of the clause, Canada endures another debate over whether it should have a place in the constitution – or if its power should be blunted.
A 2015 survey found that 93% of citizens felt the country’s Charter of Rights and Freedoms, similar to the US Bill of Rights, was the most important symbol of Canada, beating ice hockey, the Royal Canadian Mounted Police, the maple leaf and the national anthem.
The 40-year-old Charter protects a range of rights – democratic, mobility, legal, equality and language rights – and has served as a template for dozens of nations.
And yet when the then prime minister, Pierre Trudeau, set out to replace the British North America Act with a constitution in the 1980s, the decision kicked off a power struggle between the provinces and federal government.
Provinces feared that under a new constitution, courts would become too powerful, undermining the authority of the elected government. A compromise was hashed out: in cases when a government – provincial or federal – felt that the courts had overstepped, they could invoke the clause to override certain Charter rights of citizens.
It meant that some fundamental rights, including protections of religious freedom, equality and speech, could be suspended.
But the federal government put limits on this power: voting, as well as language rights, were untouchable, ensuring Canadians could remove a government if they wanted. A government could only invoke the clause for five years. Before they could renew it, they would first have to face voters.
Related video: Ontario government, education workers avoid strike with tentative deal
Duration 5:08
View on Watch
No education workers’ strike as CUPE, Ontario government reach deal
“Even without using an outstanding clause, governments have a significant ability to defend their laws if they can show why it is a ‘reasonable and proportionate’ limit on rights,” said Robert Leckey, dean at McGill’s law school. “And in reaching for the notwithstanding clause, governments are really just saying ‘We want to pass a law that wouldn’t be upheld by the courts as a reasonable and proportionate limit on rights.’”
All the provinces – except for Quebec – approved the measures and the constitution was ratified in 1982.
In the years since, the clause has rarely been invoked.
But in 2019, Quebec passed Bill 21, barring its law public employees from wearing religious symbols in public. The province pre-emptively invoked the clause, implicitly recognizing that the law breached the Charter.
Three years later, Quebec passed Bill 96, which sought to strengthen French language protections – again invoking the notwithstanding clause, in an apparent implicit recognition that the pursuit of language and cultural protections is at odds with Canada’s charter.
Meanwhile, in Ontario, the premier, Doug Ford, has used the clause – or threatened to – three times. Before Ford, no premier had ever invoked the notwithstanding clause.
The pre-emptive use of the clause sends a message: “‘We’re a majority government, we represent our voters and we don’t want to be slowed down or bothered by having to explain what we’re doing in court,’” said Leckey. “The worry is that if it’s used often, people are a little less surprised each time.”
While Ford quickly retreated on Bill 28, Quebec’s national assembly has shown little interest in scaling back its legislation, highlighting the more troubling implications of the clause, said Sonia Lawrence, a professor of constitutional law at Toronto’s Osgoode Hall law school.
“By using the notwithstanding clause, what you have is discrimination against minorities already facing discrimination. And this is where we might expect the court to be the most muscular and pushing back against a government, especially since it’s a place where we don’t expect that the broader electorate will necessarily speak up for those minorities,” she said.
Quebec’s court of appeal is hearing a case over concerns that the notwithstanding clause was misapplied in Bill 21, but the broad powers granted by the clause make it difficult for critics or courts to limit a government’s ability to pass controversial laws.
Amending the clause would require reopening debate over the constitution, a task many fear would result in a national a crisis, with provinces demanding new concessions or powers from the federal government.
But Lawrence said that despite its shortcomings in protecting minority rights, the notwithstanding clause has also prevented Canada’s top court from accusations of becoming an overtly partisan institution.
Unlike the United States where “the court has essentially been captured by political interests” and judges’ interpretations of law can shape public policy – as for example in the supreme court’s decision to overturn decades of precedent on abortion – governments in Canada can easily undo a controversial high court ruling.
“When rights are seen as absolute, there’s also a scenario in which if you think the court has wrongly interpreted the scope of a right, you’re left with very little that you can do,” said Lawrence. “That hasn’t happened to the same degree in Canada.”
Public outrage over the use of the notwithstanding clause – and surprise that rights can be taken away so easily – means Canada needs to have better ability to adjudicate when is the right time to use it, said Leckey.
“The taboo that it can never be used is probably not helpful. There really are circumstances that you might think it could be used, especially when it comes to a very controversial judgment,” he said. “But what I don’t think we’ve developed, as a political culture, the sense of when it’s legitimate to use the clause and an ability to evaluate how legislatures have justified it.”
Much of the debate, frustration and uncertainty around the clause is also a function of the constitution’s relative youth, said Lawrence.
“If we expect our charter to last, we have to also accept that we actually don’t know what kind of situations it’s going to have to deal with in the future.”
At the height of a bitter pay dispute with Ontario education workers earlier this month, the provincial premier, Doug Ford, passed a law that barred employees from striking and imposed a multi-year contract on them – breaching their constitutional rights.
Amid mounting public backlash and the prospect of a general strike, Ford quickly retreated, announcing his government would immediately rescind the bill.
In neighbouring Quebec, the provincial government is in court defending legislation barring public employees such as teachers and doctors from wearing religious symbols – a law that disproportionately affects religious minorities. Rather than backing down from controversy over the law, however, the provincial premier, François Legault, recently won re-election, in part over its popularity.
The two governments’ ability to strip away seemingly fundamental rights comes from a controversial – and uniquely Canadian – constitutional mechanism, known as the “notwithstanding clause”.
It’s been called both an “escape hatch” and a “nuclear bomb”. But with each use of the clause, Canada endures another debate over whether it should have a place in the constitution – or if its power should be blunted.
A 2015 survey found that 93% of citizens felt the country’s Charter of Rights and Freedoms, similar to the US Bill of Rights, was the most important symbol of Canada, beating ice hockey, the Royal Canadian Mounted Police, the maple leaf and the national anthem.
The 40-year-old Charter protects a range of rights – democratic, mobility, legal, equality and language rights – and has served as a template for dozens of nations.
And yet when the then prime minister, Pierre Trudeau, set out to replace the British North America Act with a constitution in the 1980s, the decision kicked off a power struggle between the provinces and federal government.
Provinces feared that under a new constitution, courts would become too powerful, undermining the authority of the elected government. A compromise was hashed out: in cases when a government – provincial or federal – felt that the courts had overstepped, they could invoke the clause to override certain Charter rights of citizens.
It meant that some fundamental rights, including protections of religious freedom, equality and speech, could be suspended.
But the federal government put limits on this power: voting, as well as language rights, were untouchable, ensuring Canadians could remove a government if they wanted. A government could only invoke the clause for five years. Before they could renew it, they would first have to face voters.
Related video: Ontario government, education workers avoid strike with tentative deal
Duration 5:08
View on Watch
No education workers’ strike as CUPE, Ontario government reach deal
“Even without using an outstanding clause, governments have a significant ability to defend their laws if they can show why it is a ‘reasonable and proportionate’ limit on rights,” said Robert Leckey, dean at McGill’s law school. “And in reaching for the notwithstanding clause, governments are really just saying ‘We want to pass a law that wouldn’t be upheld by the courts as a reasonable and proportionate limit on rights.’”
All the provinces – except for Quebec – approved the measures and the constitution was ratified in 1982.
In the years since, the clause has rarely been invoked.
But in 2019, Quebec passed Bill 21, barring its law public employees from wearing religious symbols in public. The province pre-emptively invoked the clause, implicitly recognizing that the law breached the Charter.
Three years later, Quebec passed Bill 96, which sought to strengthen French language protections – again invoking the notwithstanding clause, in an apparent implicit recognition that the pursuit of language and cultural protections is at odds with Canada’s charter.
Meanwhile, in Ontario, the premier, Doug Ford, has used the clause – or threatened to – three times. Before Ford, no premier had ever invoked the notwithstanding clause.
The pre-emptive use of the clause sends a message: “‘We’re a majority government, we represent our voters and we don’t want to be slowed down or bothered by having to explain what we’re doing in court,’” said Leckey. “The worry is that if it’s used often, people are a little less surprised each time.”
While Ford quickly retreated on Bill 28, Quebec’s national assembly has shown little interest in scaling back its legislation, highlighting the more troubling implications of the clause, said Sonia Lawrence, a professor of constitutional law at Toronto’s Osgoode Hall law school.
“By using the notwithstanding clause, what you have is discrimination against minorities already facing discrimination. And this is where we might expect the court to be the most muscular and pushing back against a government, especially since it’s a place where we don’t expect that the broader electorate will necessarily speak up for those minorities,” she said.
Quebec’s court of appeal is hearing a case over concerns that the notwithstanding clause was misapplied in Bill 21, but the broad powers granted by the clause make it difficult for critics or courts to limit a government’s ability to pass controversial laws.
Amending the clause would require reopening debate over the constitution, a task many fear would result in a national a crisis, with provinces demanding new concessions or powers from the federal government.
But Lawrence said that despite its shortcomings in protecting minority rights, the notwithstanding clause has also prevented Canada’s top court from accusations of becoming an overtly partisan institution.
Unlike the United States where “the court has essentially been captured by political interests” and judges’ interpretations of law can shape public policy – as for example in the supreme court’s decision to overturn decades of precedent on abortion – governments in Canada can easily undo a controversial high court ruling.
“When rights are seen as absolute, there’s also a scenario in which if you think the court has wrongly interpreted the scope of a right, you’re left with very little that you can do,” said Lawrence. “That hasn’t happened to the same degree in Canada.”
Public outrage over the use of the notwithstanding clause – and surprise that rights can be taken away so easily – means Canada needs to have better ability to adjudicate when is the right time to use it, said Leckey.
“The taboo that it can never be used is probably not helpful. There really are circumstances that you might think it could be used, especially when it comes to a very controversial judgment,” he said. “But what I don’t think we’ve developed, as a political culture, the sense of when it’s legitimate to use the clause and an ability to evaluate how legislatures have justified it.”
Much of the debate, frustration and uncertainty around the clause is also a function of the constitution’s relative youth, said Lawrence.
“If we expect our charter to last, we have to also accept that we actually don’t know what kind of situations it’s going to have to deal with in the future.”
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