Leave use of notwithstanding clause up to provinces, say Conservative and Bloc MPs

Ottawa -

The federal Conservatives joined the Bloc Québécois Monday to try and send a message to Prime Minister Justin Trudeau that it is up to the provinces to decide how to use the notwithstanding clause.

Bloc Leader Yves-François Blanchet brought forward a motion in the House of Commons calling on MPs to recognize that provinces have a "legitimate right" to use the clause, including pre-emptively.

While Conservative Leader Pierre Poilievre and his MPs supported the Bloc's call, the governing Liberals and federal New Democrats defeated Blanchet's motion in a vote of 174 to 142.

Following the vote, Blanchet issued a statement panning its defeat, saying the pre-emptive use of the provision is necessary for Quebec to assert its positions around language and identity.

Prime Minister Justin Trudeau has criticized decisions by the premiers of Quebec and Ontario to pre-emptively invoke the clause, which gives federal and provincial legislatures the ability to pass laws that override certain parts of the Charter for a period of up to five years.

It has been used by premiers when introducing controversial legislation. In Quebec, Premier Francois Legault used it to usher in Bill 21, which bars public servants in positions of authority from wearing religious symbols like hijabs on the job.

Legault also used it to enact language reforms under Bill 96.

In Ontario, Premier Doug Ford turned to the override provision pre-emptively last fall in the midst of labour negotiations with education workers, but changed his mind after backlash from unions and the public.

At the time, Trudeau criticized Ford's initial decision "as wrong and inappropriate," and pressed Poilievre inside the House of Commons to say whether he shared the same view.

The Opposition leader said nothing on the matter at the time, but while running for the party's leadership last year, he said he would invoke the notwithstanding clause if he became prime minister.

Poilievre said he would override a decision by the Supreme Court of Canada last year, which said that the man responsible for the Quebec City mosque shooting in 2017 would not have to wait more than 25 years before becoming eligible for parole. Prosecutors had asked the top court to extend Alexandre Bissonnette's parole ineligibility to 50 years.

Since Trudeau's Liberals were elected to power in 2015, the notwithstanding clause has been invoked seven times.

He has said he shares the same dislike for the clause as his late father, Pierre Trudeau. The former prime minister reluctantly agreed to include the measure during negotiations with premiers to establish the Constitution in 1982.

This report by The Canadian Press was first published Feb. 13, 2023.