The unique ability of Canadian governments to set aside rights | ET REALITY


In June, the Canadian Charter discussed New Brunswick Premier Blaine Higgs’ decision to reverse a policy requiring teachers to use schoolchildren’s preferred names and genders. His new plan, which requires teachers to get permission from a child’s parents if the child is under 16, set off a firestorm that included the resignations of members of his cabinet.

Now the issue has arisen again in Saskatchewan. Following Mr. Higgs’ lead, Premier Scott Moe convened his province’s legislature earlier this week to introduce a bill that, if passed, would require parental consent for a number of things, including allow teachers and employees at students’ schools to use the “new student software.” preferred name or gender identity related to gender at school” for anyone under 16 years of age.

The debate for and against the policy mirrors the earlier discussion in New Brunswick, so I won’t go over it again this week, but rather look at another important step taken by Mr. Moe.

The prime minister preemptively overturned any court decision declaring the law unconstitutional, invoking the grimly named “notwithstanding clause” of the Charter of Rights and Freedoms. The Department of Justice has an excellent manual on the clause. It is unique among the constitutions of democratic countries and gives federal and provincial governments the ability to ignore most of the constitutional rights of Canadians, other than the right to vote, the seat of legislatures and the House of Commons, the mobility rights and linguistic rights. No explanation is required for the move.

This power to set aside rights was part of a political compromise that resulted in Canada eventually obtaining an agreement, among all the provinces except Quebec, which created the constitution in 1982. For much of its history, it was rarely used except by Quebec (the federal government has never invoked it) and was considered an option of last resort.

As more prime ministers turn to it, legal scholars are increasingly concerned that the stigma against using the clause is rapidly fading. And they are particularly concerned about a growing number of premiers who, like Moe, simply assume their laws are unconstitutional and invoke the clause before any court can review them.

“This is a very dangerous trend,” Nathalie Des Rosiers, director of Massey College at the University of Toronto, told me. “The fear is that the protection of civil and political rights will become more vulnerable due to the repeated and normalized use of the notwithstanding clause. It almost makes the letter implode on itself.”

While bills in the legislature would not normally be used to set school policies, Dwight Newman, a constitutional law professor at the University of Saskatchewan, told me that by signing it into law, the Moe government will also protect its plan from challenges. that raises the Saskatchewan Human Rights Code.

Moe’s rush to legislate was prompted by a judge’s decision that became public in late September. The court imposed a temporary injunction on enforcement of the new policy until it could hear a constitutional challenge brought by the UR Pride Center for Sexuality and Gender Diversity, a Regina-based LGBTQ rights and support group.

In his decision, Judge MT Megaw of the Saskatchewan Court of King’s Bench noted that the province had not provided an explanation for why it made the change and who, if anyone, it had consulted before making it, nor had it offered no argument about its constitutionality.

“I’m a little surprised the province hasn’t made more legal arguments,” Dr. Newman told me. “What is this problem? Obviously, people are going to have pretty strong opinions on the issue and on the use of the notwithstanding clause.”

An affidavit from a provincial education ministry official, submitted to court, appears to show the policy change was prompted by 18 letters from people suggesting Saskatchewan introduce the same rules as New Brunswick. The judge noted it was unclear how many of those people, if any, lived in Saskatchewan.

Professor Des Rosiers, former head of the Canadian Civil Liberties Association, said some cases now before the courts could ultimately end prime ministers’ ability to preemptively set aside the constitution. He also noted that last year a court loss and widespread criticism had led Premier Doug Ford of Ontario to abandon his plan to invoke it to take away teachers’ right to strike.

Ms. Des Rosiers, a former Ontario cabinet minister in a Liberal government, said she thought the growing interest by some premiers in setting aside rights through use of the clause was perhaps more related to politics than specific issues. .

“They use the notwithstanding clause to feed their base the idea that we have gone too far on human rights and that the courts have been leading us down the wrong path: let’s take power back from the elected,” he said. “It’s a bit of wedge politics.”

Originally from Windsor, Ontario, Ian Austen was educated in Toronto, lives in Ottawa and has reported on Canada for The New York Times for more than two decades.

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