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O'Toole vow to never challenge provincial laws 'dangerous' for basic rights: expert

OTTAWA — Conservative Leader Erin O'Toole has vowed to "never challenge" provincial laws, a sweeping statement that carries potential implications in areas ranging from abortion access to secession rights, markinga sharp break from the Liberal tack a

OTTAWA — Conservative Leader Erin O'Toole has vowed to "never challenge" provincial laws, a sweeping statement that carries potential implications in areas ranging from abortion access to secession rights, markinga sharp break from the Liberal tack as the federal election campaign enters its endgame.

Building on his pledge to stay out of provincial bailiwicks, O'Toole made the promise last week in the context of a question around a Quebec law banning religious symbols for certain state employees. He reiterated it in the past few days as he accused Liberal Leader Justin Trudeau of "picking fights" with premiers.

"I would never challenge a law passed by the National Assembly of Quebec, Queen's Park or here in Toronto or by any provincial assembly," O'Toole said last Friday.

"I have a very clear commitment to respect provincial jurisdiction and respect the decisions of the democratically elected provincial assemblies across this country," he added Sunday.

Vancouver-based lawyer Michael Feder says the pledge never to go toe to toe with a premier amounts to a "truly remarkable" stance that could encroach on Canadians' rights and allow legislatures to ride roughshod over federal turf, including the Canada Health Act or interprovincial trade and transport.

"One can imagine Quebec purporting to ban transportation of crude oil by rail, for example, or B.C.," he said.

"It's not unimaginable that Quebec under its current leadership might purport to pass legislation governing conditions for secession. And if those conditions were at odds with what the Supreme Court of Canada has previously said … that seems to me to be an extremely ripe subject for litigation."

The question is far from hypothetical.

O'Toole has already promised to steer clear of a challenge to Quebec's Bill 21, which bars some civil servants in positions of authority from wearing turbans, kippas, hijabs and other religious garb.

Trudeau said Sunday the federal government has not "ruled out" federal intervention in a court challenge to the legislation.

The Liberal leader also made a campaign pledge to adopt a more explicit legal obligation for provinces to provide access to abortion services. The statement earlier this month came as New Brunswick continues to prohibit funding for abortions outside of three approved hospitals in Moncton and Bathurst.

O'Toole, who constantly repeats his personal pro-choice stance on the campaign trail, has nonetheless said he would leave it up to the province to sort out provision and funding of abortion procedures.

"This potentially opens up the whole abortion issue that he's desperately trying to avoid," said Errol Mendes, a law professor at the University of Ottawa.

“This is extraordinarily dangerous, if he really meant what he said (on court challenges)."

Areas of past federal-provincial legal wrangling range from securities regulation to reproductive technologies to the colour of margarine.

Earlier this year, the Supreme Court of Canada ended a years-long battle between Ottawa and three provinces over the federal carbon price when it ruled that a national price on pollution is constitutional.

“There’s nothing untoward or anything about those sorts of cases," Feder said.

However, Lori Turnbull, director of the School of Public Administration at Dalhousie University, notes that it's often provinces that challenge Ottawa rather than the other way around.

She said O'Toole's pledge amounts to a political signal telegraphing a more decentralized approach reminiscent of former prime minister Stephen Harper.

"It strikes me more as a value statement than an operational statement," Turnbull said, pointing to O'Toole's no-strings-attached pledge for $60-billion in health transfers over a decade. "It isn't for the federal government to challenge provincial laws."

That's particularly true on issues directly tied to alleged violations of the Charter of Rights and Freedoms, she said. It's typically up to affected individuals or groups to launch a legal challenge.

"But if there's an area where the federal government has pronounced that it is incredibly important, they will immediately apply as an intervener," Mendes said, warning that otherwise the country could start down a path of "provincial fiefdoms."

Harper had his limits too. In 2013 he filed a legal intervention in a challenge to Quebec's Bill 99, which sought to cement the right of unilateral secession.

In 1998, Ottawa successfully intervened in a case where the top court ordered Alberta to legally protect its residents from discrimination based on sexual orientation.

"Does he really want to be a head waiter to the provinces?" Mendes asked about O'Toole, alluding to former prime minister Pierre Trudeau's derisive characterization of his Progressive Conservative opponent Joe Clark.

Culinary comparisons aside, O'Toole's "federation of partnership" — a phrase he's returned to frequently in the lead-up to election day on Sept. 20 — echoes Clark's description of Canada as a "community of communities," a vision that saw the provinces taking on greater authority under a more passive gaze from Parliament.

While Trudeau has called out O'Toole on New Brunswick abortion services, the parties have proven reluctant to pounce on the top Tory's hands-off approach to provincial legislatures, with Bill 21 and other sensitive Quebec topics leaving leaders wary of ham-fisted pronouncements that could drive away voters ahead of Canada's 44th election.

This report by The Canadian Press was first published Sept. 16, 2021.

Christopher Reynolds, The Canadian Press