Time to ask the right questions about the notwithstanding clause

Prime Minister Justin Trudeau may finally be picking a fight with Quebec. In a French-language interview with La Presse on Jan. 21, Trudeau said he’s thinking about sending a question to the Supreme Court of Canada to have it weigh in on the use of the notwithstanding clause. “I can tell you that our Minister of Justice, David Lametti, a former dean of the faculty of law at McGill University, a proud Quebecer, is thinking precisely about the avenues available to us on this,” Trudeau told reporter Joël-Denis Bellavance. This would, of course, apply to all of Canada, but it’s Quebec that has made the most hay of it in recent years, invoking the clause pre-emptively for Bill 21, the province’s secularism act, which forbids some public servants from wearing religious symbols on the job. Quebec Premier François Legault’s government also dug into Sec. 33 of the Charter for its language reform law, Bill 96. Trudeau said the notwithstanding clause should remain “a measure of last resort,” and that its more frequent use has “reduced the political costs of the suspension of fundamental rights.” Perhaps Trudeau has Ontario Premier Doug Ford to thank for finally lighting the necessary fire under his backside. Last year, Ford’s aborted attempt to use the notwithstanding clause to stymie provincial education workers’ right to strike amid collective bargaining set off a firestorm. It was a move so universally panned it gave credence to the idea that, at least in the Rest of Canada, pushing back against the overuse of the notwithstanding could have political legs. In the interview, Trudeau saved his strongest words for the Ontario premier (“It was completely wacky, what Doug Ford did”), but that didn’t stop Premier Legault from being the one to answer back. This desire of Trudeau’s is a “frontal attack on our nation's ability to protect our collective rights,” Legault tweeted in French after the interview’s publication. Legault pointed out that no Quebec government has adhered to the 1982 Constitution Act, “which doesn’t recognize the nation of Quebec,” and that it is up to the National Assembly to decide the laws by which it’s governed. “Quebec will never accept such a weakening of its rights. Never!” In the quest for votes in seat-rich Quebec and the pursuit of forming government, politicians routinely leave the province to its own devices, regardless of the adverse effect on (usually) the minority populations who live there, be it linguistic, racial, or religious. A reference question to the country’s top court is no panacea, but it’s a good start to ensuring that Canadians’ rights are respected, no matter where they live in the country. The Hill Times