Justin Trudeau shares father’s dislike for Charter waiver clause

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OTTAWA – Prime Minister Justin Trudeau shares his late father’s contempt for the constitutional “notwithstanding clause” and he does not rule out asking the Supreme Court to rule on the preventive use of it by Quebec to flout the rights of religious minorities.

In a year-end interview with the Ottawa office of The Canadian Press, Trudeau said the Charter of Rights and Freedoms is meant to be “a bulwark against popular measures that attack the rights of minorities.”

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But the notwithstanding clause of the charter allows a government to say, “Regardless of whether we are attacking your basic rights or limiting your basic rights, and the charter says that is wrong, we are still going to go from there. ‘before and do it’.

“It is essentially a loophole that allows a majority to override the fundamental rights of a minority. And that is why I agree with my father that it is not a good thing to have in a Charter of Rights and Freedoms.

The clause allows federal and provincial governments to pass laws that violate certain rights and freedoms guaranteed by the Charter. They can invoke the clause for renewable periods of five years.

Controversy over the notwithstanding clause recently escalated with news that a Muslim teacher was removed from her elementary school class in Chelsea, Que., For wearing a hijab – in violation of the Quebec law on secularism, two years old.

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The law, known as Bill 21, prohibits public sector workers considered to be in positions of authority, including police, judges, and teachers, from displaying or wearing religious symbols at work. . The government of Quebec has invoked the notwithstanding clause as a preventive measure to prevent the courts from overturning the law as a violation of the Charter.

During negotiations with the premiers to repatriate Canada’s Constitution with a bill of rights in 1982, Trudeau’s father, former Prime Minister Pierre Trudeau, reluctantly accepted provincial demands for a notwithstanding clause. His calculation, his son said, was that it was better to have a charter with the clause “than not to have a charter at all.”

The idea at the time was that the clause would be used sparingly because Canadians would demand a high political price for any government that used it to violate fundamental rights.

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“Unfortunately, many years later this political cost has not materialized or materialized in a way my father might have hoped for and now we have to think about whether or not a preventive recourse to the notwithstanding clause is possible. “Trudeau said. noted.

Quebec also invoked the clause as a preventive measure to thwart legal challenges to Bill 96, which would strengthen French as the official language of the province. Some Anglophones in the province fear that this will be done to the detriment of their minority rights.

Quebec is not the only province to invoke the clause. Ontario Premier Doug Ford used it recently to reimpose restrictions on third party election advertising that had been declared unconstitutional. And he has threatened in the past to use it on legislation that downsized Toronto city council.

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No federal government has ever invoked the clause.

Some constitutional scholars have suggested that the drafters of the charter never intended to use the notwithstanding clause preventively. Rather, it was envisioned as a safety valve mechanism for a government to restore a law that the courts ruled to violate the charter.

Trudeau, who has not ruled out “timely” federal intervention in the ongoing legal battle over the secularism law, said his government was “in constant and in-depth reflection on the various avenues that could be taken” . He indicated that these avenues could include a reference to the Supreme Court to clarify how the notwithstanding clause should be used.

“The ultimate thinking I have is what would be most effective in continuing to move Canada forward in the right way and ensure that people’s rights are protected,” he said.

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“And that is the lens under which we are looking at everything, including the timing of a potential future intervention, how we position ourselves now, if we make any references to the Supreme Court.”

Urged on by Brampton Mayor Patrick Brown, a number of city councils, including that of Toronto, are making or considering donating money to help the legal battle against the secularism law, which is being challenged by the Association Canadian Civil Liberties and the National Council of Canadian Muslims, among others.

Trudeau said that “underlines how many people are asking the question: Can a society that wants to be free and open really force a woman or force someone to choose between their religion and their job? “

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Quebeckers themselves are pondering this issue, he noted, adding that polls suggest that Quebeckers are among the most fervent supporters of the Charter of Rights.

While such reflections should be encouraged, Trudeau added, “What scares me is if this starts to turn into ‘Quebec bashing’ it will hurt the conversation.”

Trudeau has made it clear that he opposes the secularism law because it applies to other public sector workers, not just teachers.

“I think when you start to say that someone who is religious would make a worse policeman or judge than anyone else, you are undermining the trust people can have in our institutions,” he said. in French.

This report by The Canadian Press was first published on December 17, 2021.

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