The Supreme Court of Canada, starting March 23, will hold a hearing over four days concerning a constitutional challenge of Quebec’s Bill 21.Justin Tang/The Canadian Press
Nader R. Hasan is a criminal and constitutional lawyer and partner at Stockwoods LLP.
Next week, the Supreme Court of Canada will hear what might be its most important case ever.
The case concerns a constitutional challenge to Quebec’s Bill 21, which prohibits public-sector workers in positions of authority from wearing religious symbols. Bill 21 means that in Quebec, a Muslim woman who wears a hijab cannot be a lawyer; that a Jewish man who wears a kippah cannot be a teacher; and a Sikh man or woman who wears a turban cannot work in the public service.
The law is a flagrant violation of the Canadian Charter of Rights and Freedoms’ section 2(a), which guarantees freedom of religion, and of section 15, which guarantees the right to equality. The trial judge who heard the original constitutional challenge went further, stating that Bill 21 is not just discriminatory, but dehumanizing, because it suggests that people who exercise their religion do not deserve to participate fully in Quebec society.
But that in itself is not why the case is going to the Supreme Court. When the Quebec government passed Bill 21, it invoked Section 33 of the Charter, sometimes known as the notwithstanding clause.
On its face, the clause permits the federal Parliament and provincial legislatures to keep laws on the books, even if courts decide those laws unjustifiably violate Charter rights. Governments in Canada do often pass laws that limit or infringe Charter rights, but section 1 of the Charter allows this if the government can prove to the court that the infringement is justified in a free and democratic society because some pressing public-policy goal outweighs the infringement.
The notwithstanding clause is the exception to the exception. It can be used by Parliament and provincial legislatures for those situations where courts have ruled (or are expected to rule) that there is no reasonable justification for violating fundamental freedoms (section 2), legal rights, or equality rights (sections 7 to 15), but the government wants to override them anyway.
When I was in law school, only law professors talked about the notwithstanding clause. We learned that section 33 was a political compromise, but that governments would hardly ever use it because the public backlash to overriding constitutionally protected rights would be too great.
Today, however, populist governments are on the march around the world, including in North America. Running roughshod over the rights of minorities or political enemies has become a way to appeal to one’s base, rather than a liability.
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The notwithstanding clause was used sparingly for the first three decades of the Charter, but its use – and, more recently, its pre-emptive use – has become increasingly common. Governments in Quebec, Saskatchewan, New Brunswick and Ontario have used it in the last five years. Doug Ford often brandishes it as a threat. And in last year’s election campaign, Conservative Leader Pierre Poilievre vowed to use the notwithstanding clause to eliminate bail for certain classes of accused persons, which would mark the first time it has been invoked federally.
This is not healthy. Constitutional rights are not supposed to be optional. Their purpose is to protect the people from government abuse and overreach. Putting the government in charge of deciding when rights get to be overridden is asking the fox to guard the henhouse.
The notwithstanding clause also undermines the Charter’s foundational purposes. In the aftermath of the Second World War, democratic countries acknowledged that often, the greatest threats to individual freedoms came not from foreign armies, but from one’s own overreaching government. Individual human rights needed special protections against the excesses of majoritarian government. By embedding human rights into a country’s supreme law, those rights would be guaranteed. And when the Charter was enacted in 1982, Canadians were transformed from mere subjects of the state into constitutionally protected rights-holders.
It is difficult to square that history and those goals with the notion that individual leaders can override certain human rights whenever they feel like it. Yet, that is what is at stake in the Bill 21 case. If the Supreme Court declares that there are no substantive limits on a legislature’s use of the notwithstanding clause, it will be open season on the fundamental rights of minorities. Populist governments who see a political advantage in targeting minority groups will not hesitate to do so. The Charter will exist in name only.
Our high court should instead reaffirm its commitment to constitutional democracy. Legislatures should have the ability to use the notwithstanding clause, but not with impunity. There must be limits. Any government invoking section 33 should be required to prove in court that the rights-overriding law has been passed for a proper purpose, rooted in Canadian constitutional values and principles, and that the law is rationally connected to that proper purpose. This test would still give the government the ability to use the notwithstanding clause, but restrict it from effectively writing certain constitutional rights out of existence.
If, on the other hand, there are no limits on the notwithstanding clause, then there is nothing to stop a government in the future from imposing a state religion, or eliminating due process for accused persons, or even banning visible minorities from certain professions.
Those who say “that wouldn’t happen here” should ask our neighbours to the south if they ever expected the democratic erosion in the U.S. that is under way. Democracies are fragile, and a democracy without enforceable rights is no democracy at all.
Constitutional rights cannot be optional. Notwithstanding the vicissitudes of politics, fundamental rights must be guaranteed.