Prime Minister Justin Trudeau says his government is weighing “all different options” when asked Friday whether Ottawa will seek to amend the use of the controversial notwithstanding clause.
Trudeau’s comments come as 55,000 Ontario education workers took to the picket lines on Friday in defiance of the provincial government, which passed a law Thursday pre-emptively using the notwithstanding clause to make job action “illegal.”
“This is something all Canadians who value the freedoms, the rights, the opportunities that Canada gives them and gives us all, should be standing up to be very concerned about,” Trudeau told reporters during a news conference in North York, Ont.
“And yes, this is the federal government that stands up for people’s rights and freedoms and we are absolutely looking at all different options.”
Trudeau had been asked by a reporter whether he would consider potential legislative amendments to change when the controversial notwithstanding clause can be used.
The law involving the notwithstanding clause came after Ontario’s Progressive Conservative government could not reach an agreement with the Canadian Union of Public Employees. The union has been seeking wage increases for the education workers, and indicated it would strike on Friday if an agreement was not met.
In response, Premier Doug Ford’s government pre-emptively passed a law that banned a strike, and set fines for violating the ban of up to $4,000 per employee per day — which could amount to $220 million for all 55,000 workers — and up to $500,000 per day for the union.
CUPE has said it will fight the fines, and that its job actions will continue indefinitely.
The Progressive Conservative government included the notwithstanding clause in its legislation, saying it intends to use it to guard against constitutional challenges to its strike ban. Ontario Education Minister Stephen Lecce justified its use by citing the need to keep students in school following a disruptive two-and-a-half years of learning due to the COVID-19 pandemic and its restrictions.
The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the Charter for a five-year term. Effectively, it allows governments to pass pieces of legislation notwithstanding their potential violations of Charter rights.
“Proactive use of the notwithstanding clause is actually an attack on people’s fundament rights, and in this case, is an attack on one of the most basic rights available, that of collective bargaining,” Trudeau said in his comments on Friday, adding that “all options” were on the table.
“There are a lot of people, parents like me who have kids in Ontario schools, that are concerned about the job actions, the strikes, but I can tell you all parents, all Canadians, should be extremely worried about suspension of our most fundamental rights and freedoms.”
Trudeau had asked Ford on Wednesday not to use the notwithstanding clause, a measure the Ontario premier has used previously.
Ford invoked the notwithstanding clause in June 2021– for the first time in the province’s history — to restore parts of the Election Finances Act that had previously been declared unconstitutional. Ontario argued the move was necessary to protect elections from outside influence, while critics accused the government of trying to silence criticism.
Ford had also previously threatened to use the clause in 2018, when his government intended to cut Toronto city council seats during a municipal election. It sparked outrage, but the clause ultimately wasn’t invoked because of how a related court process unfolded.
In June, Quebec passed a major reform to the province’s signature language law that reasserts the right of Quebecers to live and work in French. Premier Francois Legault has said the entire bill is covered by the notwithstanding clause. In August, a judge suspended two articles of that language law, citing risks to access to justice, until the case can be heard on its merits.
Quebec also used the clause in its religious symbols law that was adopted in 2019. Bill 21 prohibits public sector workers who are deemed to be in positions of authority, including teachers, police officers and judges, from wearing religious symbols such as hijabs and turbans on the job.
“It would be much better if instead of the federal government having to weigh in and say, ‘You really shouldn’t do this, provincial governments,’ it should be Canadians saying, ‘Hold on a minute; you’re suspending my right to collective bargaining? You’re suspending fundamental rights and freedoms that are afforded to us in the Charter?’” Trudeau said.
“The Charter of Rights and Freedoms can’t become a suggestion. It is something that has built Canada in fundamental ways by recognizing those foundational rights and freedoms that make us one of the best countries in the world.
“The outrage we’re seeing across the country right now at this latest use, building on top of previous uses that I have consistently condemned, is a moment for all Canadians to reflect and say, ‘Yeah, our fundamental rights are not to be cancelled away by governments who want to get things done in the easiest and most efficient way possible at the cost of people’s fundamental freedoms.’”