N.B. won’t be part of Supreme Court case on suspending Charter rights

The New Brunswick government is taking a pass on one of the biggest legal cases on Charter rights in Canada in years.

The province quietly withdrew in August from a Supreme Court of Canada case that will examine how the Constitution’s notwithstanding clause can — or can’t — override guarantees of fundamental rights.

The Liberals criticized the previous Progressive Conservative government on two different occasions when it used, or considered using, the clause.

But now that the party is in government, Attorney-General Rob McKee says he has concluded that New Brunswick has nothing to offer the case. 

“I felt we did not have a particular distinct legal contribution to make on that particular item and that we decided it wasn’t necessary to continue our participation,” he told CBC News.

In 2019, McKee criticized Dominic Cardy, the education minister in the Blaine Higgs government, for invoking the clause to shield a bill on mandatory vaccination requirements from a constitutional challenge.

"It's a slippery slope we're going down here when we’re talking about Charter rights for citizens,” McKee said in November 2019. “It's a dangerous precedent we're setting.”

The clause lets governments override Charter protections for freedom of religion, freedom of expression, freedom of association, as well as the right to bail, the right to be presumed innocent when charged with a crime and the protection against unlawful search and seizure.

It can also override equality rights protections that prohibit discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Any use of the clause to suspend those rights expires after five years but can be renewed.

Higgs acknowledged in 2019 that the government had a legal opinion that Cardy’s bill — to eliminate religious and philosophical exemptions from vaccination rules for school children — would be struck down in court.

Another Liberal MLA who is now a cabinet minister, Chuck Chiasson, also criticized Cardy’s move at the time.

“Once a freedom is gone, it’s gone for good, and if we’re going to take away rights and freedoms … we better have tried every other alternative and we better have a darn good reason.”

The legislature voted unanimously to remove the notwithstanding clause from Cardy’s bill, which itself went down to defeat in a free vote two days later.