Tensions with Quebec over notwithstanding clause won’t impact health-care talks: Trudeau

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OTTAWA — Prime Minister Justin Trudeau’s proposal to limit the notwithstanding clause was called a “frontal attack” on Quebec by the province’s premiere over the weekend, but despite the new tensions, Trudeau said they would not impact a future deal on health care.

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“The fact is, we will always stand up for Canadians’ fundamental rights,” he told reporters during a press conference in Toronto. “Defending Canadians’ rights and freedoms is something I have never backed off on. It’s not aimed at the provinces or even at one province specifically, it’s a principle that this government stands by.

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“I know Canadians need us to come together to solve health care for the medium and long term. And that’s exactly what we’re working on with premieres right now. We’re going to continue to work collaboratively on the things that Canadians expect us to do.”

Trudeau told the Montreal-based newspaper La Presse on the weekend that he is worried about the preemptive use of Section 33 of the Canadian Charter of Rights and Freedoms by provinces — the notwithstanding clause that allows them to override certain portions of the Charter for a five- year term — and that federal Minister of Justice David Lambetti is looking into referring the matter to the Supreme Court.

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That prompted a strong reaction from Quebec Premier François Legault, who took to Twitter to say that Trudeau’s expressed desire was a “frontal attack” on Quebec’s ability to protect its collective rights and that no Quebec government has ever adhered to the 1982 Constitution Act, which he said “does not recognize the Quebec nation.”

“It’s not a question of the federal government being against the provinces; it’s a question of making sure that we are there to defend everybody’s fundamental freedoms,” said Trudeau in French. “There will always be issues on which we will disagree, but it will always be done in respect and according to the principles and laws that govern our country.”

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Emmett Macfarlane, professor of political science at the University of Waterloo, said there was political pressure on Trudeau “to at least look like he’s trying to do something” about the use of the clause and a reference to the Supreme Court is a “pretty visible way of doing that.”

“In some ways it’s not really a direct confrontation because he can simply say, ‘Well, the cabinet is posing these questions to the Supreme Court to get clarity on whether there are any other limitations on the not withstanding clause’,” he said, adding that he does not think Quebec has “much to be threatened by” in regards to a reference case.

Macfarlane described the clause as having known a “resurgence” in recent years, starting in 2017 with Saskatchewan using it to defy a court order related to public funding of Catholic schools. Quebec used it twice since Legault took power in 2018: to restrict the wearing of religious symbols for teachers and other public-sector jobs and on the use of English in the public sphere.

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Ontario threatened to use the clause to cut the size of the Toronto city council in 2018 but ultimately used it for the first time in its history for third-party ad spending in 2021. And it was part of a back-to-work bill meant to quash a labor strike in 2022 — but it was ultimately repealed.

Apart from getting a Supreme Court reference, the federal government has limited means in terms of stopping provinces from using the notwithstanding clause.

It could intervene in court cases such as Quebec’s law on religious signs — something the federal Liberals and NDP said they were prepared to do, but the Conservatives have not committed to under new Leader Pierre Poilievre. Some commentators have suggested using the power of disallowance, but that would be “kind of the nuclear option,” said Macfarlane.

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“This is a provision of the 1867 Constitution Act that hasn’t been used in many decades. It’s considered to have fallen into a convention of disuse. So it would be basically creating a constitutional crisis,” said the expert in constitutional law.

Macfarlane added that the “nationalist foot stomping over the Constitution” plays well in Quebec, but that would not surprise him if Ontario Premier Doug Ford avoided the issue.

Meanwhile, health talks are well underway, with the federal government and provinces expressing optimism that a deal for long-term funding might soon be on the table.

Federal Health Minister Jean-Yves Duclos said there was “significant progress” on the file in a press conference last Friday, while New Brunswick Premier Blaine Higgs told CTV’s Question Period over the weekend that he believed a deal might be weeks away.

Higgs, however, said he does not expect the federal government to agree to the premiers’ request to increase funding by an additional $28 billion a year, but he said there might be a middle path. “Between where we are and where we’ve asked, there’s a number in there somewhere,” he said.