REGINA – The opposition New Democrats have introduced a private member’s bill which would refer any legislation enacting the notwithstanding clause to the Court of Appeal.
According to the wording of Bill 611 — The Constitutional Questions (Notwithstanding Clause Referral) Amendment Act — if an Act of the legislature contains a declaration pursuant to s. 33 of the Charter that a provision of the Act operates notwithstanding a provision of the Charter, the Lieutenant Governor in Council shall refer the Act to the Court of Appeal. A referral shall be made within 90 days after the Act comes int9 force.
The legislation also states the referral shall seek the opinion of the court whether the Act violates section 2 or sections 7 to 15 of the Charter and if so, whether the provision of the Act is “reasonable and demonstrably justified” pursuant to s.1 of the Charter.
The NDP had openly been contemplating bringing this legislation for at least a month. The reason they are introducing this bill, said House leader Nicole Sarauer, is “to protect workers rights and wages from any attempt by the Sask Party government to use the notwithstanding clause to override collective bargaining.”
Sarauer said their team and workers across Saskatchewan “have been watching in horror” as the Alberta government used the notwithstanding clause to force 51,000 Alberta teachers back to work.
“And what did (Premier) Scott Moe do here? Well, he celebrated. He gave credit to his best friend (Alberta Premier Danielle Smith) for effectively killing collective bargaining in Alberta and we can’t let the same thing happen here in Saskatchewan, where we hear every day from people working harder and harder and falling farther and further behind.”
Sarauer was referring to comments Moe made to reporters in October about Alberta’s use of the notwithstanding clause rl end their teachers strike.
“Unfortunately, I think it's required in the back-to-work legislation that is there,” Moe said on Oct. 31.
“And again, this is a tool that is available to duly elected governments, as put forward by at the time Premier (Allan) Blakeney, and I think agreed to and pushed for by (Alberta) Premier (Peter) Lougheed in the day. And it's part of the Constitution to ensure that elected governments certainly are making the decisions on behalf of their residents.”
Sarauer told reporters Thursday that the NDP’s bill is simply about provides an extra layer of protection for workers and enhancing public scrutiny of unilateral government action – “something the founders of this clause would support.”
Opposition critic Jacqueline Roy noted a similar bill has been passed in Manitoba by their NDP premier Wab Kinew.
“He knows like we do that people’s rights matter, that the rights of working people darn well matter.”
Kent Peterson, President of CUPE Saskatchewan, said the “severe tactics” seen from several provincial governments “should disturb every person who works for a living.”
“The notwithstanding clause was never meant to be a tool for governments to lower wages and impose contracts… Scott Moe’s willingness to use the Notwithstanding clause to lower wages is a wake up call for all of us.”
When pressed by reporters, Sarauer admitted their bill would go beyond protecting just worker’s rights.
“This bill would apply to any use of the notwithstanding clause. Our focus is on the most immediate threats seen lately in Canada, including what Danielle Smith did in Alberta.”
The initial indication is that the NDP bill is not likely to get very far. In speaking to reporters afterwards, Minister of Justice and Attorney General Tim McLeod made it known he was not impressed with what the Opposition was proposing.
"It's our view that the notwithstanding clause is there as a right of the people of Saskatchewan to be considered democratically, not changable. It's there so that when the other Charter rights collide with what the people of Saskatchewan want: the ability to override that notwithstand that is there for the people of Saskatchewan to exercise. It's not for judicial consideration, it's for democratic consideration."
McLeod added that he believed the NDP was "misinterpreting what the intent of s.33 was, which is a little ironic because it was the NDP premier Blakeney thast fought so hard for right to be put in there in the first place."
