Exemption provision | The FAE is so right!

The decision of the Autonomous Federation of Education to continue to challenge Law 21 all the way to the Supreme Court is highly contested, especially by members of the union, who are recovering from a painful strike.

We also hear many people repeating the reasons most often given since the adoption of Bill 21: the law is popular, elected officials must have primacy over the courts and, also, it is not the place of unions in such a political debate.

The problem is that the debate has evolved rapidly since the adoption of Bill 21 and we are beginning to understand what the ability of a government to override the Charter of Rights could mean in practice. at will and without restrictions.

Because there is a big difference between using the notwithstanding provision in reaction to an adverse court ruling and using it preemptively.

In the first case, we have a detailed opinion from the courts indicating the state of the law which allows the government to then act with full knowledge of the facts. But doing it preventively is the equivalent of allowing the government to act as if the Charter of Rights did not exist.

It is quite certain that the Legault government did not see all the ramifications that the preventive use of the notwithstanding provision could cause when adopting laws 21 and 96 on secularism and French. And this goes much further than what was contained in the two Quebec laws in question.

In Ontario, for example, the Ford government wanted to preemptively use the notwithstanding clause to impose a collective agreement and take away teachers’ right to strike. He finally gave up, but we understand that it is only a postponement.

In Saskatchewan, this provision was used to prevent people under 16 from changing their name and pronoun without parental permission.

And now it is Conservative Leader Pierre Poilievre who is opening the door wide to the preemptive use of the notwithstanding clause to subvert his entire criminal justice agenda, particularly a tightening of bail requirements .

“All my proposals are constitutional. We will make them constitutional using all the tools the Constitution allows me to use to make them constitutional. I think you know what I mean,” said Mr. Poilievre at the CBC microphone.

Very clearly, the Conservative leader is also preparing to use the notwithstanding provision in a preventative manner. And especially on a much more controversial subject, namely the reform of the Criminal Code.

It is very important to go to the Supreme Court because it was a 1988 decision by the same court that established the less restrictive criteria for the use of this provision. It is enough to add an article to a law to specify that it applies notwithstanding the Canadian Charter of Rights and Freedoms.

As constitutionalist Louis-Philippe Lampron of Laval University pointed out, the 1988 decision – the Ford decision, on Law 101 and billboards, by the way – was rendered “in a socio-political climate very different, particularly with regard to the rights of minority groups.”

In fact, at the time, no one seemed to think that a government could use the waiver preemptively.

But the Supreme Court has the ability to change the precedents it has set. She has already done so, in particular, on the very delicate question of medical assistance in dying which she had first refused in the case of Sue Rodriguez in 1993. In 2015, noting the changes in Canadian society, it opened the door to its legalization.

It is certain that opponents of Bill 21 will raise the question of the preventive exemption to the Supreme Court of Canada when it hears their case.

Of course, the argument was not accepted when Bill 21 was validated by the Quebec Court of Appeal. But, in reality, the lower courts do not feel very comfortable reforming a precedent set by the highest court in the land and will let the Supreme Court do it itself.

Basically, the trend is clear: the most conservative governments are increasingly tempted to use the override provision preventively if it allows them to use this means of circumventing – and even ignoring – rights guaranteed by the Charter of Rights.

This is precisely an offensive that the union movement is completely right to fear and want to counter.

The Legault government used the derogation provision to protect the specificity of Quebec. But he opened the door, whether he liked it or not, to an offensive by the Canadian right on fundamental freedoms.

The FAE is so right to be concerned about this.

Read the column “The militant dispersal of the FAE” by Patrick Lagacé

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