The CAQ’s darling (so-called) secularism bill has had its day in court. Well it’s four days, to be precise.
Bill 21, first passed by a majority vote (73-35) in Quebec’s National Assembly in 2019, bans some public sector workers in the province – teachers, police officers, people in positions of authority – from wearing religious symbols on the job. Quebec says the law is critical to keeping religion out of public spaces.
The CAQ used the notwithstanding clause preemptively, by baking it into the legislation, to protect the bill from any legal challenges on the grounds that it violates certain key Canadian rights.
This was the first time in decades a province used the notwithstanding clause to skirt around Canada’s constitutional commitment to protecting Charter rights. Think freedom of religion, freedom of expression (both protected by Section 2 of the Charter), and equality rights (Section 15). Though the bill has significant support from francophone Quebecers, civil liberties groups, religious groups, English school boards and teachers unions are just some of the organizations who have challenged this law, forcing it through Quebec’s court system over the past five years.
Last week, the bill reached Canada’s highest court, which is now considering two questions: whether the bill does indeed violate charter rights, as many argue it does, and whether the Court should consider any refining of restrictions around how the notwithstanding clause is used going forward.
The only substantial restriction on the clause to date is that it must be renewed every five years, the idea being that a government’s use of this exemption from Charter rights will eventually be judged by voters. Quebec has respected this. Quebec has in fact used the clause exactly as it was intended to be used. For this reason, the court cannot overturn the law. The most it can do is offer its two cents – a judicial declaration – on whether Charter rights are in fact being violated, and provide a statement to this effect.
In 1982, the clause was included in the Charter to bring all provinces to the table, to reach consensus. This bargaining chip was mostly successful, though Quebec still refused to sign the Constitution. The clause’s inclusion guaranteed provinces an escape door so if they decided they wanted to pass laws that violated certain Charter rights, they could do so. The belief was that it is the elected politicians who should have the final say on the laws of the land, and not a group of appointed judges.
It was a time when the potential of political blowback from passing laws that appeared to trample basic rights was enough to dissuade governments from doing so. But that stigma is gone now.
Since 2019, several other conservative-led provinces have used the clause to push through bills. Just last year Alberta used it four times in two months to push through bills affecting transgender youth and force striking teachers back to work. Perhaps better said, the era of political leaders who feel constrained by previously established safeguards put in place to protect citizens of this country is gone.
This new political climate demands new regulations around the use of the notwithstanding clause. Governments, if they wish to use it, should not be able to do so preemptively. It should be the responsibility of those who want to limit our rights and freedoms to prove why this is deemed necessary, before a law can be enacted. In Quebec’s case, where is the evidence that people who wear religious symbols cannot educate students in an unbiased manner?
It is devastating that the polarization of our political sphere has reached such extremes that conservative provincial governments feel no shame, have no fear of repercussions from passing laws that undermine what were determined by governments past to be at the core of what it meant to be Canadian. With the illusion of some kind of values-based national identity seemingly shattered, the legal safeguards around how provinces opt out of upholding Charter rights need to
be stronger. Let’s hope the Court rules in this direction.
