Will the notwithstanding clause stand the test?
Updated: Feb 3
Over the past few days, Prime Minister Justin Trudeau has positioned himself as the ultimate defender of Canada’s constitutional order. By evoking the possibility of asking the Supreme Court about the notwithstanding clause, he has ruffled some feathers in Québec, and other parts of the country as well.
Included as part of the Constitution Act of 1982, the notwithstanding clause gives Canada’s provinces, territories and federal government the power to override certain portions of the Charter of Rights and Freedoms for five-year terms when passing legislation. Québec has used it a handful of times when legislating on linguistic and cultural matters over the last few decades. While these instances received pushback, they were tolerated; Canadians largely accepted that these uses of the clause served to avoid alienating the French-speaking majority of a province that could vote to separate from the rest of the country.
However, Alberta, Ontario, New Brunswick and Saskatchewan have recently made moves to use the notwithstanding clause to implement measures that have little to do with protecting their linguistic identity or addressing other cultural concerns. This has not been well received by the federal government and has emboldened Québec to go even further in its will to subtract itself from constitutional law. The federal government is now worried that the floodgates will open, and that it will lose control of provincial ambition. Seizing the moment, Trudeau has declared that the buck stops with him.
Facing the prospect of an electoral campaign that could very well be his last, Trudeau wants to remind voters that he is a Québécois, and that, as such, he is the last rampart against what traditional liberals see as too much provincial assertiveness. Seeing a golden opportunity to back Conservative Leader Pierre Poilievre into a corner, Trudeau recognizes that he can play the unifier and force his opponents to walk a fine line between political pandering and national unity imperatives.
Out of this kerfuffle, Québec Premier François Legault could be looking for allies, mainly conservative premiers who don’t especially like Trudeau and would welcome a fight on provincial autonomy.
Nevertheless, a few key factors might keep this issue from boiling over anytime soon. First of all, with the provinces currently engaged in negotiations over massive federal transfers for critically needed healthcare funding, this could be risky timing for political leaders to fan the flames of a constitutional crisis. Second, with a recent Abacus Data poll revealing that most Canadians already perceive Québec as moving farther away form the rest of the country, the perennial threat of separation could rise again, prompting Trudeau to tone down his rhetoric. Last but not least, how Québec’s Conservative MPs would position themselves should this issue escalate also remains to be seen.
With the passing of the Constitution Act of 1982, Trudeau senior proclaimed that Canada’s federation would last a thousand years. The battle his son might be about to wage could very well test the validity of his prediction much sooner than he ever imagined.