New Brunswick Premier Blaine Higgs is prepared to go to great lengths to protect his changes to Directive 713. He does not rule out the idea of using a provision that allows a government to pass laws without having to respect all the rights and freedoms prescribed by the Canadian Charter.
Policy 713 is a school policy that protects the rights of young people from the LGBTQ+ community in schools. The Blaine Higgs government wants to change certain provisions of this law, in particular to prohibit students under the age of 16 from using the first name or pronoun of their choice without their parents’ permission.
The use of the notwithstanding clause, commonly called the “notwithstanding clause,” allows a government to pass a law for five years without having to respect all the rights and freedoms required by the Canadian Charter.
This provision is an exceptional measure that has only been used on rare occasions in Canadian history. However, in recent weeks it has been the subject of much discussion related to the rights of people from the LGBTQ+ community in the country.
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Saskatchewan Premier Scott Moe says he is willing to use the derogation clause to enforce a policy that requires parental consent of students under 16 on issues related to gender identity.
Photo: The Canadian Press / Darryl Dyck
Saskatchewan Premier Scott Moe said last week that he was willing to use that provision to introduce an LGBTQ+ policy in his province similar to New Brunswick’s.
And Blaine Higgs doesn’t rule out the possibility of following the same path.
“I think it’s necessary to do whatever is necessary to involve parents,” New Brunswick’s premier said Tuesday when asked about the issue.
The opposition can’t believe their ears
When they heard the news, Liberal opposition leader Susan Holt and Green Party leader David Coon cringed.
By declaring that he is prepared to invoke the derogation clause, the Prime Minister is admitting that he knows he is violating the Charter and that he is not worried about it, says Susan Holt.
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Susan Holt, leader of the NB Liberal Party, and David Coon, leader of the NB Green Party.
Photo: Radio-Canada
It would be ridiculous to use the clause, but young people still have rights, adds David Coon.
In a written statement, the director of the Canadian Civil Liberties Association’s Equality Program, Harini Sivalingam, takes the same line.
Threatening to invoke the derogation clause amounts to an admission that the New Brunswick government knows its actions are unconstitutional, she claims.
A difficult layout to use
However, the derogation provision can be easily invoked if it is properly drafted and enacted in the Legislative Assembly. For now, this is just a policy.
Only NB legislators, the legislature or parliament can pass a waiver. This means that neither the government nor a minister or a municipality can act alone, explains Patrick Taillon, a constitutional lawyer at the University of Laval.
Blaine Higgs must contend with six members of his caucus who openly oppose changes to Directive 713. The Prime Minister may therefore not have the necessary support to apply the derogation provision.
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Congresswoman Andrea Anderson-Mason is among those who have spoken out against Blaine Higgs’ proposed changes to Directive 713. (archive photo)
Photo: Radio-Canada
Progressive Conservative MP Andrea Anderson-Mason wants the prime minister to discuss the idea with his group before moving forward.
If the province intends to use it, the MP says it would be worth having a conversation with the entire caucus before taking such a decisive approach.
With information from Alix Villeneuve