At the height of a bitter pay dispute with Ontario education workers earlier this month, provincial Premier Doug Ford passed a law barring employees from striking and imposing a multi-year contract, infringing their constitutional rights.
Amid growing public backlash and the prospect of a general strike, Ford quickly backed down and announced that his government would immediately rescind the bill.
In neighboring Quebec, the provincial government is in court defending legislation that bans public employees such as teachers and lawyers from wearing religious symbols, a law that disproportionately affects religious minorities. However, instead of backing down from the controversy over the law, the provincial premier, François Legault, recently won re-election, in part because of his popularity.
The ability of both governments to remove seemingly fundamental rights comes from a controversial – and uniquely Canadian – constitutional mechanism known as the “notwithstanding clause”.
It has 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 whether its power should be curtailed.
A 2015 poll found that 93% of citizens considered the country’s Bill of Rights and Freedoms, similar to the United States’ Bill of Rights, to be Canada’s most important symbol, beating out ice hockey, the Royal Canadian Mounted Police, the maple leaf and the national. hymn
The 40-year-old Charter protects a range of rights (democratic, mobility, legal, equality and linguistic) and has served as a model for dozens of nations.
However, when then-prime minister Pierre Trudeau proposed replacing the British North America Act with a constitution in the 1980s, the decision set off a power struggle between the provinces and the federal government.
The provinces feared that under a new constitution, the courts would become too powerful, undermining the authority of the elected government. A compromise was reached: in cases where a government, provincial or federal, felt that the courts had been overreached, it could invoke the clause to override certain Charter rights of citizens.
It meant that some fundamental rights, including protections for religious freedom, equality and speech, could be suspended.
But the federal government placed limits on that power: voting, as well as language rights, were untouchable, ensuring that Canadians could remove a government if they wanted to. A government could only invoke the clause for five years. Before renewing it, they should face the voters first.
“Even without using the however clause, governments have an important ability to defend their laws if they can show why it is a ‘reasonable and proportionate’ limit on rights,” said Robert Leckey, dean of the Faculty of McGill Law. “And by coming to the notwithstanding clause, governments are just saying ‘We want to pass a law that the courts will not hold to be a reasonable and proportionate limit on rights.'”
All provinces except Quebec approved the measures and the constitution was ratified in 1982.
In subsequent years, the clause has rarely been invoked.
But in 2019, Quebec passed law 21, banning its public employees from wearing religious symbols in public. The province preemptively invoked the clause, implicitly acknowledging that the law violated the Charter.
Three years later, Quebec passed Bill 96, which sought to strengthen protections for the French language, again invoking the clause however, in an apparent implicit acknowledgment that the pursuit of linguistic and cultural protections is in disagreement with Canada’s charter.
Meanwhile, in Ontario, Premier Doug Ford has used the clause – or threatened to – three times. Before Ford, however, no prime minister had ever invoked the clause.
Preemptive 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.’ ” Leckey said. “The concern is that if it’s used often, people get a little less surprised each time.”
Although Ford quickly backed down on Bill 28, Quebec’s national assembly has shown little interest in scaling back his legislation, highlighting the more troubling implications of the clause, said Sonia Lawrence, a professor of constitutional law at the Osgoode Hall School of Law in Toronto.
“By using the however clause, what you have is discrimination against minorities who already face discrimination. And that’s where we might expect the court to be most muscular and push back against a government, especially because it’s a place where we don’t expect the general electorate to necessarily speak for these minorities,” he said.
Quebec’s appeals court is hearing a case on concerns that the clause would nevertheless be misapplied to Bill 21, but the broad powers granted by the clause make it difficult for critics or courts to limit the ability of a government to pass controversial laws.
Amending the clause would require reopening the debate on the constitution, a task many fear would translate into a national crisis, with provinces demanding new concessions or powers from the federal government.
But Lawrence said that despite its shortcomings in protecting minority rights, the clause has nevertheless also prevented Canada’s top court from being accused of becoming an overtly partisan institution.
Unlike the United States, where “the court has essentially been captured by political interests” and judges’ interpretations of the law can shape public policy, such as in the Supreme Court’s decision to overturn decades of precedent on the ‘abortion, Canada’s governments can easily undo a controversial high court ruling.
“When rights are seen as absolute, there’s also a scenario where if you think the court has misinterpreted the scope of a right, there’s very little you can do,” Lawrence said. “That hasn’t happened to the same degree in Canada.”
Public outrage over the use of the clause, however, and surprise that rights could be so easily withdrawn, means Canada needs to be better able to decide when the time is right to use it, he said. Leckey.
“The taboo that you can never use it is probably not helpful. There are really circumstances where you might think it could be used, especially when it’s a very controversial trial,” he said. “But what I don’t think we’ve developed, as a political culture, is the sense of when it’s legitimate to use the clause and the ability to assess how legislatures have justified it.”
Much of the debate, frustration and uncertainty surrounding the clause is also a function of the constitution’s relative youth, Lawrence said.
“If we expect our charter to last, we also have to accept that we don’t really know what kind of situations we’ll have to deal with in the future.”