The New Brunswick government has decided to step back from a significant legal case concerning Charter rights in Canada. The province withdrew from a Supreme Court of Canada case in August, which will explore the extent to which the Constitution’s notwithstanding clause can supersede guarantees of fundamental rights.
Previously, the Liberals had criticized the Progressive Conservative government for their consideration and use of the notwithstanding clause. However, Attorney-General Rob McKee, now in government, stated that after careful consideration, New Brunswick did not have a unique legal perspective to contribute to the case.
In a past incident in 2019, McKee had criticized the then-Progressive Conservative education minister, Dominic Cardy, for utilizing the notwithstanding clause to protect a bill on mandatory vaccination requirements from a constitutional challenge. The notwithstanding clause allows governments to override Charter protections, including freedoms of religion, expression, and association, as well as rights to bail, presumption of innocence, and protection against unlawful search and seizure.
The debate around the notwithstanding clause gained momentum when Quebec and Saskatchewan used it to defend their laws on religious symbols and gender identity policies. The case before the Supreme Court involves Quebec’s law prohibiting certain public workers from wearing religious symbols during their duties, with Saskatchewan’s pronoun and gender identity policies also under scrutiny.
While some argue for limitations on the clause’s application, McKee mentioned that New Brunswick evaluates its involvement in Supreme Court cases on a case-by-case basis. Despite provinces being entitled to intervener status in Charter cases, New Brunswick chose not to intervene in the current case.
Legal expert Kerri Froc expressed disappointment over New Brunswick’s decision, particularly considering the government’s emphasis on women’s rights. She highlighted the Charter’s provision on equal rights for men and women as a means to restrict the suspension of rights.
McKee emphasized the government’s stance on protecting rights and expressed hope that they would not need to resort to using the notwithstanding clause.