New Brunswick Premier Blaine Higgs says he has not ruled out using the notwithstanding clause to adopt legislation that would allow authorities to force certain people into drug treatment.
Higgs told reporters Tuesday the Compassionate Intervention Act is not ready to be tabled, but he wouldn’t exclude using the clause in the Constitution that shields bills from court challenges over Charter right violations.
“Well, it’s early days,” he said in response to a question about use of the clause. “I would say, let’s get it introduced. And we’ll have lots of discussion on that, and the details.” The Compassionate Intervention Act, originally planned to be tabled this week, is now scheduled to be introduced when the legislature resumes sitting in May.
Last week, Public Safety Minister Kris Austin said the idea behind the bill is to place people with severe drug addiction in treatment, after consultations with family, medical professionals and police.
The aim, he said, is to get people “who are so heavily involved in addictions, where most of them don’t even know their own name … into a place of sobriety under medical treatment, so that they can simply make that choice for themselves.”
Austin deflected a question on whether forced treatment would violate Charter rights, saying the justice minister would be better able to answer.
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“Well, again, we’re not looking to arbitrarily just drag people into some sort of incarceration,” he said. “A lot of them are so overcome with their addiction, that they’re at a place where they need somebody to intervene on their behalf.”
Wayne MacKay, professor emeritus of law at Dalhousie University, said the notwithstanding clause has so far not been used in connection with legislation forcing people with drug addiction issues into treatment.
He said it would be “particularly problematic” if New Brunswick chose to go that route. “Because you’re basically forcing someone into treatment, whether they want it or not. It’s a clear limitation on their freedom and right to choose,” he said. An argument could also be made that equality rights are violated, because people with a particular kind of disability — drug addiction — are being targeted, MacKay said.
Andrew McDougall, an assistant professor of political science at the University of Toronto, said invoking the notwithstanding clause — Section 33 of the Charter of Rights and Freedoms — is a recognition by governments that rights are being violated.
“What it essentially is used for is when governments suspect that what they’re doing — or know that what they’re doing — may not pass Charter scrutiny,” he said. He said governments can pre-emptively put the notwithstanding clause in a bill, insulating it from a Charter challenge.
Quebec used the notwithstanding clause pre-emptively for Bill 21, which prohibits certain public sector workers from wearing religious symbols, and for Bill 96, its language law reform. The Saskatchewan government also used it with legislation preventing children under 16 from changing their names or pronouns at school without parental consent.
“It is an unusual thing to do, though. It is considered kind of the nuclear option in Canada,” McDougall said.
MacKay said a legal challenge could be brought even if the notwithstanding clause has been used, but the chances of success are low.
“The use of the notwithstanding clause cannot be blocked by the courts solely on the basis that a particular use is undesirable or ill advised,” he said. The clause is only in force for five years, after which it has to be renewed, so political accountability for its use “may come in the next election, if it comes at all,” MacKay said.
This report by The Canadian Press was first published April 3, 2024.