People rally against Bill 21 in Chelsea, Que., on Dec. 14, 2021.Justin Tang/The Canadian Press
Sheema Khan is the author of Of Hockey and Hijab: Reflections of a Canadian Muslim Woman.
When Canada’s Charter was being drafted, Saskatchewan and Alberta argued for a notwithstanding clause that would give democratically elected legislators the final say on laws they passed, rather than unelected judges. Pierre Trudeau, then the prime minister, opposed the idea, as he was worried about its potential to undermine fundamental rights. He eventually acquiesced, inserting it as section 33.
That clause is meant to be relatively narrow in its scope, allowing governments to stop courts from striking down any law that violates fundamental freedoms (section 2), legal rights (sections 7 to 14) and equality rights (section 15). A provincial or federal legislature can use the clause to enact a law that would otherwise be deemed unconstitutional for a period of five years. The thinking was that governments would rarely use this “nuclear” option that gutted fundamental rights, for fear of a backlash from the electorate, and it has played out that way for years.
However, during the past seven years, the clause has been invoked or threatened nine times: in Saskatchewan, in 2017, to maintain funding for non-Catholic students at Catholic schools; in Ontario, in 2018, to reduce the size of Toronto’s municipal council; in Quebec, pre-emptively, in Bill 21, to prevent certain classes of public servants from wearing religious symbols, in 2019; in New Brunswick, to prevent religious/philosophical exemptions for mandatory vaccines, also in 2019; in Ontario, in 2021, to restrict third-party spending one year before an election; in Ontario, in 2022, to prevent education workers from negotiating or striking; in Quebec, in 2022, to restrict English language rights; Saskatchewan, in 2023, to require schools to obtain parental consent before using a change in pronouns or preferred names for children under 16; and in Quebec, last month, when retabling Bill 21 before its 2019 use of the clause expires in June.
In most cases, invoking the notwithstanding clause has allowed the state to restrict the rights of vulnerable minorities.
Last week, the Quebec Court of Appeal released its 290-page decision on the legality of Bill 21 – which reaffirmed the government’s pre-emptive use of the clause, along with the lower court’s decision that the clause shielded the bill from any judicial scrutiny. This means that the public is being left in the dark about which of the freedoms enshrined in the Charter are being violated by a bill that the government expected would be deemed unconstitutional, were it not for the clause. (The QCA did overturn the decision that exempted English-language school boards from being bound to Bill 21 in their hiring practices.)
Perhaps the most jarring analysis is the Court’s dismissal of arguments by the bill’s opponents based on section 28, which enshrines gender-equality rights in the Charter. That argument makes the point that Bill 21 disproportionately restricts the freedom of religion and expression of Muslim women compared to men. The notwithstanding clause cannot be used to shield laws that discriminate between women and men – i.e., it cannot override section 28.
In fact, during the drafting of the Charter, Canadian women demanded the exclusion of section 28 from the notwithstanding clause. They had the foresight to ensure that gender-equality rights could not be denied by the potential whims of future governments.
But Quebec’s appeals court took great pains to explain that section 28 is, in fact, included in the notwithstanding clause. How? Well, by actually being included in each of the rights enshrined in sections 2 and 7 to 15, and thus having no stand-alone value in of itself.
For example, the Court considered a hypothetical law that gives police the power to detain and search all women unaccompanied by a male in public between midnight and 5 a.m. This violates sections 8 (security against unreasonable search) and 9 (no arbitrary detention). The Court argues that if the notwithstanding clause was invoked to shield the law, section 28 cannot be used to declare the law unconstitutional on the basis of gender inequality, since its only value lies in its association with existing rights – not rights that have been suspended.
The Court’s logic reminds me of the following imperfect analogy: it’s the pre-1960s era, section 28 is an unmarried woman, and her only value is through her association with a man, say a father, a brother, a husband, a son (any one of sections 2 and 7-15). Where no such man exists, she has no real inherent value of her own.
The Court’s logic is also dangerous, as it means there is no real protection for women against discriminatory laws if a legislature pre-emptively invokes the notwithstanding clause. Her personal agency and equal opportunity can be taken away at the behest of a hostile legislature. Just ask Muslim women in Quebec.