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Lori Turnbull is the director and an associate professor at the School of Public Administration at Dalhousie University.

In a recent interview with La Presse, Prime Minister Justin Trudeau expressed his frustration with some premiers’ reckless use of the notwithstanding clause.

“There should be political consequences to such a decision,” Mr. Trudeau said, referring to enacting the part of the Constitution that allows Parliament and provincial legislatures to pass laws that infringe on sections 2 and 7 to 15 of the Charter of Rights and Freedoms. “But we are experiencing a certain trivialization of this suspension of rights.”

It is awkward, uncomfortable, and perhaps politically hazardous for a prime minister to put the blame on voters for giving premiers a pass on Charter compliance, but that is his not-so-veiled message. And it’s not an unreasonable one.

In 2022, Ontario Premier Doug Ford and Quebec Premier François Legault tried to stamp the notwithstanding clause onto legislation pre-emptively, before a court even ruled that they had run afoul of the constitution. In doing so, they demonstrated contempt for Charter rights, and effectively circumvented the judicial review of legislation process – an important part of our democracy that protects the rights of individuals and minorities from potentially predatory political agendas. The premiers of Canada’s two largest provinces have thus contributed to the normalization of a political tool that had been considered off-limits for many years, and their brazenness is indicative of a breakdown in the vitality of our electoral democracy; they know they can get away with this.

Mr. Ford and Mr. Legault have cynically taken two things for granted. First, they’ve assumed that public support for the legislation in question goes deep enough that its advocates will ignore the misuse of Section 33 – that is, that the ends will justify the means. Second, they’ve counted on the fact that a growing number of voters are switched off completely and genuinely do not know or care whether elected representatives are following the rules of engagement or practising good governance. Mr. Ford’s pre-emptive use of the clause to force education workers back to the job was met with intense criticism both within and outside Ontario; in Quebec, however, Mr. Legault was able to proactively ram through his government’s language law.

But however justified he may be in his disappointment, Mr. Trudeau does not have the authority to block or put conditions on a province’s use of the notwithstanding clause. He could use the power of disallowance to strike the legislation down, but that would be its own affront to democracy.

Absent a better option, the Liberal government has started thinking out loud about asking the courts to weigh in. In that La Presse interview, Mr. Trudeau said that Justice Minister David Lametti is “thinking about the avenues open to us,” including referring the issue to the Supreme Court of Canada in the hopes of producing a test for deploying the clause.

Other sections have such formalized tests. Section 1 of the Charter – the reasonable limits clause – permits governments to curtail the application of Charter rights, but leaves it up to the courts to decide whether the infringement is fair. Governments must show that their decisions “can be demonstrably justified in a free and democratic society.” Further, the use of Section 1 must meet the threshold established by the Oakes test, which was created by the Supreme Court: the government’s objective must be pressing and substantial, and there must be a proportional and rational connection between this objective and the infringement of the right.

If a legal test like this were applied to Section 33, it would help prevent the misuse and overuse of the notwithstanding clause. Such a test was always supposed to be political rather than legal, though; the Charter’s authors expected voters to decide whether the infringement of Charter rights is acceptable. For this reason, governments are obliged to revisit their use of Section 33 every five years, which provides voters a chance to defeat a government that gets it wrong.

Previous prime ministers, including Mr. Trudeau’s father, have famously referred sticky political problems to the courts, in the hopes that they can be cajoled into saying what the government wants. This situation is no exception. But it is not clear what the court will say if asked. The temptation to seek judicial clarity and legal boundaries is understandable, particularly given the risk that other premiers will follow Mr. Ford and Mr. Legault’s lead and the Charter will lose its meaning. But if the court applies a legal test to Section 33, it would be inserting itself where voters should be. This might be the best option to protect the Charter – but it would be a sad commentary on the state of our democracy.

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