Amid growing public backlash and the prospect of a general strike, Ford quickly backed down, announcing that his government would immediately cancel the bill. In neighboring Quebec, the provincial government is defending legislation that bans public servants such as teachers and lawyers from wearing religious symbols – a law that disproportionately affects religious minorities. But instead of backing down from the controversy over the law, the province’s premier, François Legault, recently won re-election, in part because of his popularity. The two governments’ ability to remove ostensibly fundamental rights comes from a controversial – and uniquely Canadian – constitutional mechanism known as the “extension clause.” It is called both an “escape hatch” and a “nuclear bomb”. But with each use of the clause, Canada faces another debate over whether it should have a place in the constitution — or whether its power should be watered down. A 2015 survey found that 93% of citizens felt that the country’s Charter of Rights and Freedoms, similar to the US Bill of Rights, was Canada’s most important symbol, beating out ice hockey, the Royal Canadian Mounted Police, the maple leaf and the national anthem. The 40-year-old Charter protects a range of rights – democratic, mobility, legal, equality and language rights – and has served as a model for dozens of nations. Yet when then-prime minister Pierre Trudeau set out to replace the British North America Act with a constitution in the 1980s, the decision set off a power struggle between the provinces and the federal government. The provinces feared that with a new constitution, the courts would become too powerful, undermining the power of the elected government. A compromise was struck out: in cases where a government – provincial or federal – thought the courts had gone too far, they could invoke the clause to override certain Charter rights of citizens. This meant that some fundamental rights, including the protection of religious freedom, equality and speech, could be suspended. But the federal government placed limits on that power: voting, as well as language rights, were untouchable, ensuring that Canadians could remove a government if they wanted to. A government could only invoke the clause for five years. Before they could renew it, they would first have to deal with the voters. “Even without the use of the extension clause, governments have significant ability to defend their laws if they can show why they are a ‘reasonable and proportionate’ limit on rights,” said Robert Leckey, dean at McGill law school. “And by trying to get the clause through anyway, governments are really just saying ‘We want to pass a law that won’t be upheld by the courts as a reasonable and proportionate limit on rights.’ All provinces – except Quebec – approved the measures and the constitution was ratified in 1982. In the years since, the clause has rarely been invoked. But in 2019, Quebec passed Bill 21, banning its public servants from wearing religious symbols in public. The province preemptively invoked the clause, implicitly acknowledging that the law violated the Charter. Three years later, Quebec passed Bill 96, which sought to strengthen the protection of the French language – again invoking the nullity clause, in an apparent tacit acknowledgment that the pursuit of linguistic and cultural protection ran counter to its charter Canada. Meanwhile, in Ontario, the premier, Doug Ford, used the clause – or threatened to – three times. Before Ford, no prime minister had invoked the clause though. Preemptive use of the clause sends a message: “We are a majority government, we represent our constituents and we don’t want to be slowed down or bothered to explain what we are doing in court.” Leckey said. “The concern is that if it’s used often, people are less surprised each time.” While Ford quickly backed down on Bill 28, Quebec’s national assembly showed no interest in narrowing its legislation, highlighting the clause’s more troubling implications, said Sonia Lawrence, a constitutional law professor at Toronto’s Osgoode Hall law school. “By using the notwithstanding clause, what you have is discrimination against minorities who are already discriminated against. And here we might expect the court to be the most muscular and pushy against a government, especially because it’s a place where we don’t expect the wider electorate to necessarily speak for these minorities,” he said. Quebec’s appeals court is hearing a case over concerns the clause was misapplied in Bill 21, but the broad powers granted by the clause make it difficult for critics or courts to limit a government’s ability to pass controversial laws. Amending the clause would require re-opening the constitutional debate, a task many fear will lead to a national crisis, with the provinces demanding new concessions or powers from the federal government. But Lawrence said that despite its shortcomings in protecting minority rights, the extension clause also prevented Canada’s highest court from being accused of becoming an openly partisan institution. Unlike in the United States where “the court has been virtually captured by political interests” and judges’ interpretations of the law can shape public policy — as, for example, in the Supreme Court’s decision to overturn decades of precedent on abortion — governments in Canada they can easily reverse a controversial Supreme Court decision. “When rights are considered absolute, there’s also a scenario where if you think the court has misinterpreted the scope of a right, there’s very little you can do,” Lawrence said. “That hasn’t happened to the same extent in Canada.” Public outrage over the use of the no-holds-barred clause — and surprise that rights can be taken away so easily — means Canada needs to have a better ability to judge when the time is right to use it, Leckey said. “The taboo that it can never be used is probably not helpful. There are actually circumstances where you might think it could be used, especially when it’s a very controversial judgement,” he said. “But what I don’t think we’ve developed, as a political culture, is a sense of when it’s legitimate to use the clause and the ability to assess how legislatures have justified it.” Much of the debate, frustration and uncertainty surrounding the clause is also a function of the constitution’s relative youth, Lawrence said. “If we expect our charter to last, we also have to accept that we don’t really know what kind of situations it’s going to face in the future.”
