Challenging the Limits of the Notwithstanding Clause
Passed by the first Coalition Avenir Québec government of François Legault in 2019, Bill 21 forbids certain government employees in positions of authority – teachers, judges, police officers, for example – from wearing religious symbols, including hijabs, kippahs, turbans, and such. Ostensibly a measure to support Quebec’s commitment to a secular state, the law was mostly upheld in Superior Court in April 2021, but is now under appeal by both sides. Premier Legault’s invocation of the notwithstanding clause attempt to shield the law from court challenges drew fire from Prime Minister Justin Trudeau, who said governments should not be using the clause pre-emptively. Already, stories of teachers who have abandoned their careers in Quebec because of the law. A study by the Association of Canadian Studies found there has been an overall decline in a sense of acceptance as full-fledged members of Quebec society among the Jewish, Sikh, and Muslim communities. It was particularly high among Muslim women – at 80 per cent. As of the end of 2022, only Muslim women have lost jobs or been refused jobs because of Bill 21.
On February 8, 2024 the government of Quebec tabled Bill 56 An act to enable the Parliament of Québec to Preserve the Principle of Parliamentary Sovereignty with Respect to the Act Respecting the Laicity of the State to reenact the Notwithstanding Clause that overrides protections included in the Canadian Charter of Rights and Freedoms. More details on the Notwithstanding Clause in section above.
CONSULT BILL 21 AN ACT RESPECTING THE LAICITY OF THE STATE
THE NOTWITHSTANDING CLAUSE (SECTION 33 OF THE CANADIAN CONSTITUTION)
The Notwithstanding Clause, or Section 33 of the Canadian Constitution, permits parliament or the legislature of a province or territory to expressly declare in legislation, that a law – or parts of a law – can operate notwithstanding the fundamental freedoms or equality right contained in the Canadian Charter of Rights and Freedoms. Also known as the ‘override’ clause, the notwithstanding clause may not be applied to democratic, mobility, or language rights contained in the Charter.
The Notwithstanding Clause was a political compromise made during the patriation process of the Canadian Constitution from Britain in 1982. This led to the Constitution Act, 1982 and its entrenched bill of rights: the Canadian Charter of Rights and Freedoms. Some provinces were concerned that the power of the courts to enforce the Charter would infringe upon the supremacy of the legislatures, also known as parliamentary sovereignty, or parliamentary supremacy. Hence the Notwithstanding Clause was born. Section 33 is a feature unique to Canada among countries with constitutional and liberal democracies, a system of government characterized by the ability of people whose rights or freedoms have been infringed or denied to apply to the courts for remedy. Once invoked, Section 33 effectively precludes judicial review of the legislation.
The use of this clause has proved controversial. Quebec has invoked it a number of times, mostly recently for Bills 21, which forbids the wearing of prominent religious symbols by public servants in positions of authority, and Bill 96, which updates the Charter of the French Language and reduces historic rights and access to services enjoyed by Quebec’s English-speaking community.
CONSULT SECTION 33 OF THE CANADIAN CONSTITUTION (THE CHARTER OF RIGHTS AND FREEDOMS)