Ewan Sauve, right, press attache, walks along as Quebec Premier Francois Legault walks to a news conference prior to question period at the legislature in Quebec City, on Oct. 29.Jacques Boissinot/The Canadian Press
Public policy can be hard. But when your government faces a conundrum, why not sprinkle a little notwithstanding clause on it to make things easier?
That seems to be the way Quebec Premier François Legault looks at things.
The Premier notes that Quebec medical schools devote resources to train doctors and some of them leave to practise medicine elsewhere. Quebec has a shortage of doctors and that’s a big political problem for Mr. Legault.
According to the Premier, the province has thought of forcing newly graduated MDs to work in Quebec’s public health care system, making them pay back the cost of their medical education – which apparently comes to hundreds of thousands of dollars – if they leave to practise in Ontario or some other place.
But Mr. Legault told reporters that because wealthier grads could buy their way out and poorer ones couldn’t, such a policy might get hung up on a Charter of Rights and Freedoms provision that guarantees equality, Section 15. Not to worry: The Premier said he’ll be ready to use the notwithstanding clause to ensure it’s not struck down.
It’s just so easy. Mr. Legault has invoked the notwithstanding clause of the Charter several times before. The clause allows legislatures to pass laws that infringe on rights guaranteed in several sections of the Charter, and Mr. Legault has invoked it to bulletproof entire bills against judicial review.
It has been such a simple cure-all that Mr. Legault seems to reach for it any time he feels governing might cause a headache.
In this case, however, the Premier still has a problem. The notwithstanding clause doesn’t apply to Section 6 of the Charter of Rights and Freedoms, which guarantees mobility rights and includes the right “to pursue the gaining of a livelihood in any province.”
“It can’t be used against Section 6 in the first place. That just takes it right off the table,” said University of Alberta law professor Eric Adams, an expert on constitutional law and the notwithstanding clause.
Presumably the Quebec government has lawyers who know that, so it won’t actually be relying on the notwithstanding clause to save this bill from a mobility-rights Charter challenge in the courts.
It still might be possible to pass a law that gets to the intended goal. A lot depends on how Quebec drafts the legislation, and whether it can convince a court that its infringements on mobility rights are reasonable limits that are “demonstrably justified,” Queen’s University law professor Mark Walters noted in an e-mail.
If the province makes it a condition of entry to medical school that once a graduate is qualified as a doctor they must practise in Quebec or reimburse a sum of money, it might then argue that’s a reasonable limit on mobility rights, Prof. Walters said. It’s not obvious that would succeed, but it’s “not implausible,” he said.
Given all that, one has to wonder why Mr. Legault would even bother to raise the idea of using the notwithstanding clause. Perhaps it has just proven so handy in the past. Perhaps it’s because he thinks it’s popular – and will make it look like he’s pulling out all the stops to supply doctors to Quebeckers.
There’s plenty of debate about the legitimacy of the use of the clause. Some politicians and legal scholars see it as a tool that should never be used, one only included in the Charter so politicians could make a deal on the Constitution.
But Prof. Adams said the framers of the clause intended it to be used to provide a response to the courts when elected legislature believed the judges drew the wrong line between rights and reasonable limits on them.
That implies its use should be judicious, and not an easy shortcut to a policy goal. Yet there has been a growing willingness to use it to brush aside Charter inconveniences – sometimes to replace the need to file a court appeal or draft new legislation that meets a policy objective without unreasonably infringing on Charter rights.
It’s true that Quebec’s political culture is different. For a period after the 1982 repatriation of the Constitution, the Parti Québécois government invoked the clause on every bill as a protest. There was never as much of a taboo on the use of the notwithstanding clause.
But Mr. Legault has in the past used it to override the enshrined rights in Quebec’s own Charter of Human Rights and Freedoms, too. It has become an easy reflex.