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Pre-emptively using notwithstanding clause 'not the right thing to do:' Trudeau

Quebec Premier François Legault accused Trudeau over the weekend of attacking the province's "democracy and people" by suggesting he would limit the use of the notwithstanding clause
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Prime Minister Justin Trudeau addresses media after touring Xanadu Quantum Technologies in Toronto, Monday, Jan. 23, 2023. THE CANADIAN PRESS/Frank Gunn

OTTAWA — Prime Minister Justin Trudeau says provinces should not be pre-emptively using the notwithstanding clause, because it means "suspending fundamental rights and freedoms."

Quebec Premier François Legault accused Trudeau over the weekend of attacking the province's "democracy and people" by suggesting he would limit the use of the notwithstanding clause.

"This desire expressed by Justin Trudeau is a frontal attack on our nation's ability to protect our collective rights," Legault said in French on social media.

The notwithstanding clause, which is Section 33 of the Canadian Charter of Rights and Freedoms, allows Parliament or provincial legislatures to override certain sections of the charter and invoking it ahead of time prevents courts from weighing in.

Legault was responding to comments Trudeau made during an interview with La Presse, when he said he is thinking about asking the Supreme Court to answer questions on its use.

On Monday, Trudeau said he did not think provinces should be "proactively" and "pre-emptively" using the notwithstanding clause.

"I've often said that I always deplore any attempt by provinces and territories to use the notwithstanding clause to suspend basic rights without going through the courts," he said at a news conference in Toronto.

"That's not the right thing to do, in my opinion."

Legault's government had pre-emptively invoked the notwithstanding clause on the Quebec secularism law, known as Bill 21, which forbids some public servants in positions of authority from wearing religious symbols on the job.

Trudeau said his government plans to intervene when Bill 21 reaches the Supreme Court.

Legault maintains it is up to Quebec's National Assembly to decide its laws.

His social media response to Trudeau ended with the declaration "Quebec will never accept such a weakening of its rights. Never!"

Trudeau said he will continue to work with provinces on shared priorities and brushed aside concern Legault’s comments would impact ongoing negotiations with premiers over health-care funding.

"There will be issues that we don't agree with the provinces and territories, but we'll always work in a respectful manner with them based on the principles and the legislation that govern our country," he said in Toronto.

Legault's government has made use of the notwithstanding clause twice since forming government in 2018 — for Bill 21 and for Bill 96, which reforms language laws.

Trudeau was also critical of Ontario Premier Doug Ford's pre-emptive use of the notwithstanding clause to stop the province's education sector from striking last year. The prime minister called the use of the law in that instance "wrong and inappropriate."

The notwithstanding clause has been used seven times since Trudeau became the prime minister in 2015, although sometimes it was removed before being put to use.

A key feature of the Constitution when it was established in 1982, the notwithstanding clause was used 15 times during the 1980s but rarely after that.

Between 1990 and 2018, it was invoked just four times.

This report by The Canadian Press was first published Jan. 23, 2023.

David Fraser, The Canadian Press