Reaction to Conservative support for the notwithstanding clause

2023/02/17 Leave a comment

From the right (Ivison) to the left (Raj):

Most MPs come to Ottawa with good intentions, resolving to follow their conscience to make life better for their communities. Often though, they find that their conscience is not going in the same direction as their party. A decade ago, I remember Indo-Canadian Conservative MP Tim Uppal sending me a set of head scarves for my western Quebec soccer team, to wear in a solidarity protest against the Quebec Soccer Federation’s turban ban. Today, Uppal says he opposes Quebec’s Bill 21, the law that bans some public servants in the province from wearing religious symbols such as turbans to work.

Yet, earlier this week, he and the rest of the Conservative party voted in favour of a Bloc Québécois motion that called on the House of Commons to remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.

This is the same clause that was invoked by Francois Legault’s Quebec government pre-emptively to shield it from court challenges — which was prescient because the Quebec Superior Court judged last year that Bill 21 violates religious freedom but is beyond the reach of the judiciary. A panel of judges at the Quebec Court of Appeal is now weighing whether the bill disproportionately discriminates against Muslim women who wear the hijab (even the notwithstanding clause does not protect legislation that discriminates on the basis of gender).

I wrote to Uppal and said I was surprised at the party’s position on the use of notwithstanding. “I understand it’s popular in Quebec but we both know it’s blatant discrimination,” I said.

In reply, Uppal said that the motion was about the ability of the provinces to use the notwithstanding clause as guaranteed in the Constitution. “We are not interested in getting into a drawn-out constitutional battle. There are more important issues to focus on,” he said. It would be mildly amusing to watch political parties make age-old mistakes for the first time, if the consequences weren’t so serious. The Conservative party’s discomfort at siding with the Bloc, in pursuit of soft nationalist votes, risks alienating ethnic voters.

It is reminiscent of Justin Trudeau’s indiscretion early in his leadershipwhen he said he favoured keeping existing representation in the Senate because it was to Quebec’s advantage — a statement that did not go down well in other parts of the country where he was trying to build support. It may once have been possible to simultaneously pander to different groups on opposite sides of the same issue, but it is no longer. We have the internet now.

Uppal has been trying to reassure the World Sikh Organization that he and his party remain opposed to Quebec’s secularism law. He has said the Liberals are trying to spin a narrative that the Conservatives explicitly support the pre-emptive use of the clause.

Who knows why anyone might believe that line, except for the fact that it is demonstrably true.

The Bloc’s motion is not abstract — it relates directly to the pre-emptive use of Section 33 of the Constitution by the Legault government in its secularism and language legislation.

Sikh groups have, correctly, asserted that this erodes the Charter and suspends human rights. Uppal claims that the notwithstanding provision is a longstanding part of the Charter, which is true, but he cannot ignore that this vote empowers Legault and endorses his position. I know the arguments in favour of use of notwithstanding — and support them to a point. Stephen Harper’s former deputy chief of staff, Howard Anglin, made an impassioned argument in support of Section 33 recently, arguing that judges violated the “1982 bargain” by egregiously overreaching in their judgments. “Judges make poor gods,” he said. “Call me a stickler for democracy but I prefer the people wielding ultimate power in any society to be accountable, and, in a pinch, removable.”

He’s right. But until recently, the clause was used when politicians wanted to correct what they believed was judicial excess. Now it is being invoked (by Quebec and Ontario) at the beginning of the process to camouflage unjust laws. Federal justice minister David Lametti says that such use “guts Canadian democracy and means the Charter doesn’t exist” — a bold statement that commits his government to act.

Trudeau said in late January that Lametti is looking to refer the use of Section 33 to the Supreme Court, pending the ruling from the Quebec Court of Appeal on the religious symbols case. The prime minister’s intervention provoked a choleric reaction from Legault, who says it is up to the Quebec National Assembly to decide the laws that govern the province.

The premier argues the Canadian Charter is part of the Constitution Act that Quebec didn’t sign — an argument that ignores Quebec’s own charter, adopted unanimously by the province’s legislature in 1975, which is clear that every person has the right to full and equal recognition of his or her human rights, without distinction, exclusion or preference based on race, gender or religion. “Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impacting such rights,” it says. Legault has been discriminating against the allophones and anglophones that constitute 20 per cent of Quebec’s population because it is popular with the francophone majority, who have been persuaded by their government that the French language and Quebec culture are threatened.

The federal government has little option but to oppose such blatant injustice, but in doing so the country’s unity will likely be tested. If Lametti asks the Supreme Court to impose restrictions on the use of Section 33, it could prove explosive. The court may refuse to hear the case on the grounds of conflict of interest — Section 33 was designed to limit the power of the courts. If the top court’s anglo majority does overturn the law, it could be the casus belli the separatists have been waiting for and could send Canada hurtling toward another referendum.

In their defence, the Conservatives might argue that western premiers don’t want restrictions placed on a notwithstanding clause that has been used by Alberta and Saskatchewan.

But the real reason Conservatives voted for a Bloc motion — never a smart or admirable thing — is to pander for votes in Quebec.

They may get them, but the cost could be their integrity and the trust of ethnic communities who could lose confidence in Poilievre’s party as a protector of minority rights.

Conservative MPs might want to refresh their memories on the thoughts of the philosophical founder of their movement, Edmund Burke, on the subject of natural law and individual rights. “The liberty of no one man, no body of men, and no number of men, can find means to trespass on the liberty of any person, or any description of persons, in society. This kind of liberty is indeed but another name for justice; ascertained by wise laws and secured by well-constructed institutions.”

Source: In Quebec, the Tories can choose principles or pandering. Not both

Conservative Leader Pierre Poilievre’s Quebec lieutenant made a shocking declaration this week that went unnoticed in English Canada, telling reporters that Conservatives “of course” agree with the provinces’ pre-emptive use of the notwithstanding clause.

On Tuesday, Quebec MP Pierre Paul-Hus said the party “might not necessarily” contest Quebec’s Bill 21 at the Supreme Court — reversing Poilievre’s previous stance. Then, Paul-Hus added, “Is the use of the notwithstanding clause in a pre-emptive manner, as the provinces have used it — are Conservatives in agreement with that?”

“Bien oui,” he said, meaning, “Of course” — or, literally, “Well, yes.”

That might be news to some of the Conservative MPs who vocally opposed Bill 21, a discriminatory law that bars those wearing religious symbols from holding certain public-sector jobs.

But perhaps they shouldn’t be surprised.

This week, they all sided with the sovereigntist Bloc Québécois and voted to tell Ottawa — the Liberals and any future federal government — to butt out of the notwithstanding clause debate. (Only Manitoba’s Candice Bergen, Nova Scotia’s Rick Perkins and Ontario’s Alex Ruff, who represents Bruce-Grey-Owen Sound, didn’t show up for the vote, and only the Liberals and NDP opposed.)

The motion proposed by the Bloc read: “That the House remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.”

The notwithstanding clause was a compromise that allowed prime minister Pierre Elliott Trudeau to enshrine the Canadian Charter of Rights and Freedoms into the Constitution. It gives legislatures the right to override some Charter rights for a renewable period of five years. Several politicians around the table at the time felt the political cost of using the clause would dampen the temptation to use it.

But that thinking has drastically shifted. In 2019, Quebec’s government introduced Bill 21 to popular support. Knowing the legislation was discriminatory, Premier François Legault pre-emptively invoked the notwithstanding clause to protect it from court scrutiny. The clause was pre-emptively used again last year by Quebec when it passed Bill 96, legislation that limits the rights of anglophones in the province and curbs the use of other minority languages.

Then, last fall, Ontario Premier Doug Ford attempted to pre-emptively invoke the clause, too — this time to stop educational support workers from striking.

Widespread public opposition and the unions’ collective action forced Ford to back down, but not before Ottawa spent days contemplating how it should respond. Should it ask the Supreme Court if the provinces had the right to use the clause pre-emptively? Within Prime Minister Justin Trudeau’s office, staff argued the power of disallowance — a constitutional provision that gives the federal government the right to disallow provincial laws — was outdated (it hasn’t been used since 1943), but they searched for creative ways to send a message that Ottawa wasn’t happy and that it believed the notwithstanding clause needed parameters around it.

At the time, and again this week, Justice Minister David Lametti argued the pre-emptive use of the notwithstanding clause was robbing the courts of having their say.

“It was always meant to be a last resort, in the context of constitutional negotiations,” he said. “It’s a grave matter when we use a law to breach people’s rights in Canada (and) the use of the notwithstanding clause must be an exception.”

The Bloc, unsurprisingly, doesn’t want the federal government telling Quebec what it can and can’t do.

But it is more than noteworthy that the Tories agree — regardless of whether Paul-Hus was making up party policy on the fly or if he had Poilievre’s benediction.

The vote Monday suggests several things.

First, we can expect that as prime minister, Poilievre would sit back and allow any province to pass discriminatory laws using the notwithstanding clause. This is what the Bloc motion called for. This is what Conservative MPs supported.

Second, Poilievre is aggressively courting nationalist voters in Quebec, embracing the same playbook that failed for Erin O’Toole and Andrew Scheer, and his position on Bill 21 may be shifting again. During the French-language Conservative leadership debate last May, Poilievre said he “would not reverse the federal decision” to fight both Bill 21 and 96 at the Supreme Court. But if the Liberals are no longer in office when these laws reach the country’s top court, can Poilievre be counted on to defend minority rights? Monday’s vote suggests not.

Lastly, the Conservative MPs who vehemently opposed Bill 21, who argued against O’Toole’s non-intervention policy and paved the way for his ouster and Poilievre’s leadership, acted disingenuously. Opposing Bill 21, believing that pre-emptive use of the clause should be limited, or that the federal government should fight the bill at the Supreme Court, meant voting against this motion.

Several MPs I spoke with said they believed they were simply reaffirming what the Constitution states, making a statement of fact.

It clearly was about much more than that.

Either you believe in something, or you don’t.

Source: Would Pierre Poilievre’s Tories let provinces strip us of our rights? ‘Of course,’ one of his MPs says

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Conservatives clarify opposition to Bill 21 following vote for notwithstanding clause

2023/02/16 Leave a comment

Not sure that they will be able to appease all the various groups, whether community or regional, with this approach of trying to have it both ways:

The federal Conservatives are trying to reassure the World Sikh Organization of Canada that the party remains opposed to Quebec’s secularism law after its MPs voted in support of a provision the province used to make it into law.

On Monday, the Conservatives voted en masse in favour of a Bloc Québécois motion recognizing that provinces have a “legitimate right” to use the notwithstanding clause, including pre-emptively.

In Tuesday’s letter to Balpreet Singh, a spokesman for the Sikh association, deputy Conservative leader Tim Uppal said the Liberals are trying to spin a narrative that the Conservatives explicitly support the “pre-emptive use” of the clause.

The clause is a provision in the Charter of Rights and Freedoms that allows provincial and federal governments to pass laws that circumvent parts of the Charter for a period of up to five years.

When the clause is invoked pre-emptively, it effectively prevents anyone from launching a legal challenge in court.

“We’re talking about the suspension of human rights and the erosion of the charter,” Singh said. “And that’s a huge hit. Not just for minorities, but for all Canadians.”

The Sikh organization is among groups vocally opposed to Quebec’s secularism law, which bans some public servants in positions of authority from wearing religious symbols such as turbans at work.

Premier Francois Legault’s government invoked the notwithstanding clause to usher in the law, as well as Bill 96, which reforms provincial language laws.

In 2021, the Ontario government used the notwithstanding clause to restore parts of the Election Finances Act. It also invoked the clause last year to impose a new contract on education workers, but quickly backed down from the measure.

In his letter, Uppal says the notwithstanding provision is a “long-standing part” of the Charter of Rights and Freedoms and the ability of provinces to use it is “the legal reality.”

He goes on to say Trudeau’s government has “not made any attempts to change it,” despite having been in power since 2015.

“Since Bill 21 was introduced in March of 2019, the Liberal government has taken no action in the courts to oppose it,” Uppal said.

Uppal says that Conservative Leader Pierre Poilievre has been clear he is against the Quebec law, and while he respects the province’s ability to pass its own legislation, he hopes it is repealed.

Singh said Tuesday that he appreciates the clarification, but is disappointed with the Conservatives choosing to vote for a motion that appears to be “empowering” provinces to use the clause.

“You can’t say that they can use the notwithstanding clause willy-nilly,” he suggested, while also arguing against Bill 21.

Source: Conservatives clarify opposition to Bill 21 following vote for notwithstanding clause

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Dodek: It’s time for the Supreme Court, and the federal government, to stand up for the Charter

2023/01/06 Leave a comment

Valid critique:

The Liberals used to be the party of the Canadian Charter of Rights and Freedoms. Now, under Prime Minister Justin Trudeau, they risk being the party that leads to the Charter’s decline.

Over the past five years, the political taboo over the use of the notwithstanding clause, which allows governments to override some Charter rights, has been shattered across Canada. This occurred not under former prime minister Stephen Harper, a Conservative who was the favourite lightning rod of Liberal Charter enthusiasts, but under the current Liberal stewardship of Mr. Trudeau.

When Ontario Premier Doug Ford threatened to use the notwithstanding clause in the fall of 2018, as part of a plan to shrink the size of the Toronto City Council in the midst of the provincial election, the Prime Minister did nothing. (Ultimately, Mr. Ford did not use the clause in that instance.)

The next year, Quebec Premier François Legault went ahead with using the notwithstanding clause to insulate Bill 21, which bans certain provincial government employees from wearing religious symbols at work. In 2021, Mr. Ford also used the clause for a law limiting third-party election spending. In both cases, Mr. Trudeau again did nothing.

Earlier this year, the Quebec government used the notwithstanding clause once more, this time to push through Bill 96, its new language law. Yet again, the Prime Minister took no action, though he has said that the federal government would intervene in a legal challenge to Bill 21 at the Supreme Court of Canada.

“This is a matter that matters to all Canadians, regardless of which part of the country they live in,” Mr. Trudeau said in May, when asked if Ottawa would involve itself in the Bill 21 challenge. “This government will continue to be here to defend people’s fundamental rights and freedoms.”

I doubt those whose rights have been threatened or stripped away by legislation in Quebec and Ontario find much comfort in the Prime Minister’s vague and banal words. They won’t help the Muslim women in Quebec who have lost their jobs because they wear a hijabas a declaration of their faith. They won’t help non-native French speakers who are barred from speaking another language at work.

While the Ontario government pledged to repeal its most recent use of the clause (as part of Bill 28, which made it illegal for unionized education workers to go on strike), Canadians should still be concerned about the increased use of this clause by provincial governments.

Mr. Trudeau could act right now if he wanted to. If he has the political courage to do so, the Prime Minister could initiate a reference to the Supreme Court challenging the pre-emptive use of the notwithstanding clause in Quebec and Ontario. He could send some of the best legal talent in the country from the Department of Justice down the street to the high court to stand up for the minority rights of Canadians.

Crucially, Ottawa could argue that the Supreme Court should revisit its 1988 Ford v. Quebec (Attorney-General) decision, which gave governments the carte-blanche ability to use the notwithstanding clause.

Supreme Court decisions are not cast in stone. Much has changed in the three decades since it first ruled on the use of the notwithstanding clause, which authorized its use both in reaction to court decisions striking down laws as violations of the Charter, as well as its pre-emptive use in advance of any such legal challenges.

The rights and provisions set out in the Charter do not define themselves. It is the task of the courts, especially the Supreme Court, to interpret its contents. The political leaders who debated and enacted the Charter knew full well that they would be giving this awesome responsibility to the courts.

Between 1980 and 1981, a special joint committee of the Senate and the House of Commons spent more than 150 hours hearing from Canadians about the draft Charter. The legislators on this committee were warned that the enactment of a constitutionally-entrenched bill of rights such as the Charter would make the courts responsible for its interpretation.

The 1988 Ford decision dates to the early years of Charter interpretation. It is part of the first generation of Charter cases. The high court’s interpretation of Charter rights ebbs and flows over time.

A favourite metaphor among Canadian constitutional lawyers and academics is the idea that our Constitution is a “living tree” – one that is capable of growth and expansion within its natural limits. Sometimes, the Constitution needs to be pruned back. In other cases, the courts or governments go too far – in recent years, both have done so on sanctioning and using the notwithstanding clause.

The time is ripe for Canada’s highest court to revisit its 34-year-old decision. It is also long overdue for some strong federal leadership to defend the Charter rights of Canadians.

Adam Dodek is a law professor at the University of Ottawa and author of the book, The Canadian Constitution.

Source: It’s time for the Supreme Court, and the federal government, to stand up for the Charter

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Khan: I thought the Charter protected Canadians’ fundamental rights, but I was wrong

2022/06/24 Leave a comment

Another good column by Sheema Khan:

Like you, there have been many times I have felt proud to be Canadian. For example, our government’s principled refusal to join the immoral invasion of Iraq. Attending citizenship ceremonies, where new Canadians remind us of the deeper meaning of citizenship. Being told by one of my Harvard professors that Canadian students were the best prepared – a testament to our excellent public education system. And of course, the 1995 Unity Rally in Montreal, on the eve of the Quebec referendum, where Canadians joined hands peacefully to express our heartfelt love for Canada and Quebec.

The contentment has been punctuated by instances of profound doubt, when I wonder what we really stand for. For example, the longstanding Canadian project to inflict cultural genocide on Indigenous communities. Just read the summary of the Truth and Reconciliation Commission’s report to get a shocking glimpse into the depravity of our country’s official policy: Last year’s gut-wrenching announcements about the unmarked graves of Indigenous children on the grounds of former residential schools. And let’s not forget the complicity on the part of government agencies in the rendition of Maher Arar to torture in Syria.

Post 9/11, our courts served as a check on government overreach on basic civil liberties. I grew to love our Constitution, which replaced hockey as a central feature of my Canadian identity.

I am not a historian. Nor am I a lawyer. I am, simply, a Canadian citizen who cherishes our Charter of Rights and Freedoms as a safeguard for fundamental rights and freedoms.

Imagine, then, the gut-punch upon discovering that the highest law of the land – to which new citizens pledge allegiance – makes no such guarantees of fundamental rights and freedoms whatsoever. All owing to the notwithstanding clause, which is enshrined in the Charter.

For years, I saw the “notwithstanding clause” as a polysyllabic legal term, bandied about by constitutional experts. I didn’t know what it meant. Mainstream media clarified it as a right, given to provincial and federal governments, to suspend Sections 2 and 7 to 15 of the Charter. All of this still seemed abstract. Until it wasn’t, after reading those sections.

In a nutshell, the Charter grants governments the right to suspend basic individual freedoms that we all take for granted. Namely, freedom of conscience, religion, thought, belief, opinion and expression, as well as freedom of the press, peaceful assembly and freedom of association. We aren’t talking about emergency measures, nor reasonable limits that are justified in a democracy. No, we are talking about a constitution that makes it perfectly legal to suspend basic human rights, as a matter of governance.

It does not stop there.

A number of basic legal rights can be suspended. These include the right to life, liberty and security (barring some exceptions, such as the prison system); requirement of warrants for search and seizure; the right to be informed why one is being detained; the right to a lawyer upon arrest; the right against unlawful imprisonment; presumption of innocence until proven guilty; and the right not to be subjected to cruel and unusual punishment. The clause allows suspension of the right of every individual to be equal before, and under the law; and suspends the right to equal protection of the law without discrimination based on race, ethnicity, colour, religion, sex, age or disability.

This needs to be spelled out: our Charter makes it perfectly legal to gut basic rights. There is no need for a coup, no need to politicize selection of judges, no need to gerrymander, no need to use a loophole. The potential for abuse is encoded into law. There is no other constitutional democracy that allows for the gutting of basic rights as a matter of governance.

Much has been written about the history of how the notwithstanding clause came to be: a compromise between federal and provincial powers; a balance between elected representatives and unelected judges. Yet, this does not explain how basic human rights were used as a bargaining chip, rendering our Charter of Rights and Freedoms hollow.

When it was introduced, the thought was that it would be rarely used. Some termed it the “nuclear button.” For decades, that was the case. However, within the past three years, it has been used twice by Quebec and once by Ontario. Quebec Bills 21 and 96 unequivocally suspend individual and legal rights of minorities. Conservative Party leadership candidates Jean Charest, Pierre Poilievre and Patrick Brown have promised to strike down the recent Supreme Court decision on sentencing, using the clause.

It’s time for each Canadian to engage in a conversation about who we are as a country, given that our Charter allows for cancellation of basic civil liberties.

Source: I thought the Charter protected Canadians’ fundamental rights, but I was wrong

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Raj: Quebec is using the Constitution to take away the rights of minorities. What if that becomes the norm?

2021/12/15 3 Comments

Good question although the solution of opening the constitution to provide “guardrails” for use of the notwithstanding clause would be opening a Pandora’s box given that other issues would emerge, not to mention garnering sufficient provincial support:

Fatemeh Anvari has started a national conversation.

The school teacher in Chelsea, Que., removed from her classroom this month because of her hijab, has put a face to Bill 21, the Quebec law that prevents those wearing religious symbols from holding certain public-sector jobs.

The law is popular in Quebec, where Premier François Legault defended it again Monday as reasonable and important to ensure secularism and the appearance of neutrality.

“People can teach if they take off their religious symbol while they teach, and when they are in the streets, at home, they can wear a religious symbol,” Legault told reporters.

The shocked parents of students at Chelsea Elementary School want to use their outrage to cast a light on Bill 21’s injustice.

But a Quebec Liberal MP hopes Anvari’s case prompts broader thinking. Anthony Housefather wants a national discussion on the use of the notwithstanding clause, and how to prevent the majority from using its position to curb the rights of minorities.

Anvari lost her ability to teach because Legault pre-emptively used the Charter of Rights and Freedoms’ notwithstanding clause, section 33, giving the Quebec government the ability to trample on fundamental rights and shield its action from the courts. (It is doing so again with language Bill 96.)

“I’m not naïve about it,” the Mount Royal MP told me. Amending the Constitution to add parameters around the clause or eliminate it completely requires the approval of at least seven provinces representing 50 per cent of the Canadian population. The only other direct option would be Ottawa’s power of disallowance, last used to invalidate provincial law in 1943.

But Housefather thinks a conference with legal scholars or a committee of the House of Commons could explore:

1) whether the notwithstanding clause should be enacted through a simple majority vote;

2) whether the override clause should be able to override fundamental freedoms, such as conscience, religion, expression, and association, found in section 2 of the Charter;

3) whether the notwithstanding clause should be used pre-emptively.

He argues pre-emptive use wasn’t what the framers had in mind, back in 1981, when the override clause was inserted into the Charter to break an impasse between some premiers and Ottawa.

According to the Library of Parliament, Allan Blakeney, the then premier of Saskatchewan, referred to the measure as one that would allow Parliament and the legislatures to “override a court decision.” Roy McMurtry, the attorney general of Ontario, wrote that the notwithstanding clause would be used “in the unlikely event of a decision of the courts that is clearly contrary to the public interest.”

Housefather hopes the conversation can move beyond one focused on Quebec.

“Bill 21 is a Quebec issue, but the notwithstanding clause and the ability of any legislature to override fundamental rights is not a Quebec issue. It’s a national issue.”

Ontario Premier Doug Ford used the notwithstanding clause this June to reintroduce a third-party election spending bill that had been struck down by the court. He previously threatened to use the clause if the court prevented him from interfering in the municipal election by changing the size of Toronto’s city council. Alberta Premier Jason Kenney has mused about invoking section 33, and, last year, New Brunswick MLAs voted to remove the notwithstanding clause from a bill imposing mandatory vaccination for children in schools and daycares.

At the heart of the matter is getting the Supreme Court to review a 1988 decision that very broadly interpreted the clause. Back then, the court was ruling on a case from the early 80s. “The Charter was sort of wet behind the ears,” said Robert Leckey, the dean of law at McGill University, “and so the idea that the court got it right in 1988 in a way that would last for ages, doesn’t make sense to me.”

The top court has changed its mind on collective bargaining and more recently medically-assisted dying. Ottawa could step in with a reference to the Supreme Court, though Leckey believes a more strategic approach would be intervening at the Quebec Court of Appeal.

His big concern is that the notwithstanding clause becomes normalized, that Canadians stop being shocked by its use, and that, consequently, there are few political costs to invoking it. That would be truly dangerous, he said.

So if a national conversation can help discuss legitimate and illegitimate uses, Leckey’s for it.

“A lot of people have a sense that you shouldn’t use (the override clause) to authorize torture, but there is nothing on the face of section 33 or the Supreme Court’s judgment that would tell us that you shouldn’t use the notwithstanding clause to legalize torture,” he said.

“So there probably are some implicit norms around it that we haven’t done a very good job yet of fleshing out.”

Source: Quebec is using the Constitution to take away the rights of minorities. What if that becomes the norm?

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Notwithstanding clause could stop debate over Quebec’s secularism bill before it starts

2019/03/28 Leave a comment

To watch:

As the Quebec government prepares to table its secularism bill, constitutional experts are raising concerns about Premier François Legault’s reported plans to pre-emptively invoke the notwithstanding clause to ensure public workers in positions of authority are banned from wearing religious symbols.

Robert Leckey, dean of McGill University’s law faculty, said doing so would effectively make it impossible to challenge the constitutionality of the legislation.

“It really immunizes the law from the more obvious charter challenges,” Leckey said in an interview.

Montreal’s La Presse newspaper reported last week that a provision to invoke the clause could be written into Bill 62 itself.

The notwithstanding clause, officially called Section 33 of the Charter of Rights and Freedoms, allows provincial or federal authorities to override certain sections of the charter for a period of five years.

Sources told Radio-Canada earlier this week the bill will go further than originally expected. New teachers, as well as school principals, would be subject to the ban, which would also apply to lawyers, judges, police officers, courthouse constables, bodyguards, prison guards and wildlife officers.

‘Collective rights’

Civil rights groups have already vowed to challenge the legislation, but Legault has repeatedly said he’s prepared to use the notwithstanding clause to impose the ban.

He said so again on Tuesday.

“It’s not a small thing. It’s a big decision. But sometimes, in order to protect collective rights, we have to use it. I think we have to protect our collective identity,” Legault said, pointing out the clause has been invoked numerous times by different premiers.

“To separate religion and politics is important in Quebec.”

The bill by his Coalition Avenir Quebec governement will be the fourth successive attempt at laying out a framework for religious neutrality in the province, following previous efforts by the Jean Charest Liberals, the Parti Québécois under Pauline Marois and the Liberal government of Philippe Couillard.

The most controversial sections of Couillard’s legislation are still before the courts after being subjected to a charter challenge.

But given the province’s long history of debate about religious neutrality, Leckey is skeptical that moving quickly will allow the CAQ government to settle the matter once and for all.

“I just don’t think it’s the case that it will put a lid on these things,” he said.

“I think there will be a messiness in applying the law.”

Rarely used, except in Quebec

Political leaders across the country have been reluctant to use the notwithstanding clause, which is viewed by many as politically perilous. It has only been invoked three times outside Quebec.

“The view was that this would be a clause used infrequently and in very specific circumstances. I’m not sure whether that is what’s qualifying the use of it today,” said James Kelly, a constitutional expert and political science professor at Concordia University.

The clause is more commonly invoked inside Quebec, where it has served as both a means of symbolic resistance and as a tool to defend Quebecers’ collective identity.

The most controversial use of the notwithstanding clause was in 1988, when then-premier Robert Bourassa used it to override a Supreme Court ruling on minority language rights, passing a law requiring outdoor commercial signs to be in French only.

The possibility of the clause being invoked pre-emptively harkens back to how a former PartiQuébécois government used it.

Between 1982 and 1985, the PQ objected to the terms of the new Canadian Constitution by including a notwithstanding clause in every piece of legislation it introduced.

Philippe-André Tessier, the head of Quebec’s Human Rights and Youth Rights Commission, said the CAQ’s proposed bill should be put to a debate at the National Assembly.

“The commission believes that it’s only in exceptional circumstances that the notwithstanding clause should be used,” he said.

Source: Notwithstanding clause could stop debate over Quebec’s secularism bill before it starts

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Andrew Coyne: Marois’ PQ joins ranks of those who would use notwithstanding clause to block minority rights

2014/04/02 Leave a comment

Cat out of the bag, as the PQ admits that the proposed Charter would require use of the notwithstanding clause in order to survive legal challenge:

How very Canadian: notwithstanding if necessary but not necessarily notwithstanding. Still, Ms. Marois has clarified matters, even if inadvertently. Not only do her remarks suggest the PQ knew all along that the bill it was proposing, the centrepiece of its platform, was unconstitutional, a violation of the Canadian Charter of Rights and Freedoms, but it had no intention of amending it to bring it into conformity. Either it planned to deliberately blow it up, as in La Presse’s version [Le choc, la charge, la charte | Vincent Marissal], or it would invoke the constitutional override, a possibility it had never conceded until now.

Andrew Coyne: Marois’ PQ joins ranks of those who would use notwithstanding clause to block minority rights | National Post.

Chantal Hébert in L’Actualité:

1- Il n’a jamais fait de doute que la Charte serait contestée devant les tribunaux. Sa compatibilité avec les libertés fondamentales a toujours été matière à débat, et pas seulement à l’extérieur des rangs gouvernementaux. Autrement, le gouvernement aurait produit les avis juridiques que ses propres avocats lui ont certainement préparés au moment de son élaboration.

2- Un gouvernement curieux de savoir comment son projet cohabitait avec les libertés fondamentales aurait pris les devants et l’aurait soumis à la Cour d’appel du Québec pour avoir son avis.

3- Ce ne sont pas de lointains Canadiens qui vont contester la Charte, mais plutôt des citoyens ou, même, des groupes ou des organismes québécois. La Ville de Montréal et la plupart des universités, de même qu’un nombre conséquent d’associations professionnelles et même syndicales, s’opposent fermement à son application.

4- La clause dite nonobstant est renouvelable aux cinq ans sur un vote majoritaire de l’Assemblée nationale. S’il fallait y avoir recours pour appliquer une Charte de la laïcité, attendez-vous à refaire le débat.

Chantal Hébert : La Charte, les chartes et la clause nonobstant

Federal government reaction has been appropriately cautious on this point during the campaign, although all three parties were very strong when the Charter was announced:

Utilisation de la clause dérogatoire par le PQ: les députés fédéraux prudents OTTAWA

 

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