Quebec Premier François Legault's government has invoked the Charter’s notwithstanding clause to pass a number of recent bills.Jacques Boissinot/The Canadian Press
Sheema Khan is the author of Of Hockey and Hijab: Reflections of a Canadian Muslim Woman.
In its relentless march toward laïceté, the Quebec government is now using a clause in Canada’s Charter of Rights and Freedoms to make itself the arbiter of religious practice in the public sphere.
Its latest effort is Bill 9, which will ban daycare employees from wearing religious symbols, prohibit public prayer without municipal authorization (though solitary prayer will still be permitted), and disallow public institutions, such as universities, CEGEPs and schools, from offering prayer spaces.
Under this law, exclusively halal or kosher meals cannot be served by public institutions, and anyone present in a public school must uncover their face, such as during parent-teacher interviews or when picking up one’s child from school. Bill 9 follows Bill 94, introduced in October, which expanded on Bill 21, the province’s ban on religious symbols for many public-sector employees, to include anyone who interacts with students in schools, such as office staff, janitors, psychologists, librarians and parent volunteers.
Criticism has been swift. The Assembly of Catholic Bishops of Quebec called Bill 9 a “radical infringement on the rights and freedoms of the Quebec population.” The National Council of Canadian Muslims called it “political opportunism” meant to deflect attention from Quebec’s labour shortage, lack of affordable housing and continuing conflict with doctors.
Alberta invokes notwithstanding clause on three bills affecting trans and gender-diverse youth
Muslim women will be disproportionately affected by the new daycare rules, according to Maria English, executive director of a public daycare network in the province, making it harder for her to find “nurturing educators.” Muslim students who observe daily prayers are worried about finding a quiet, clean location to spend a few moments in solemn worship.
Several decades ago, the Catholic Church had a stranglehold on Quebec life. The pendulum is now in full swing from one extreme to another, in which the state has full control over religious practice in pursuit of laïcité, or secularism. In both cases, fundamental personal freedoms are quashed in the name of ideology.
While laïcité is unique to Quebec among the provinces, its legal implementation is quintessentially Canadian, because the Quebec government invoked the Charter’s notwithstanding clause to pass these bills. This clause allows provincial and federal legislatures to suspend, for five years, many of Canadians’ fundamental rights and freedoms.
If the clause is invoked when introducing a bill – that is, pre-emptively – then the legislation is shielded from judicial scrutiny (except for in Saskatchewan). You can scream that a law tramples your basic rights, but too bad, so sad – a court won’t hear you out. Meanwhile, the public is often kept in the dark about which rights are suspended and why.
The notwithstanding clause is a populist’s dream: target vulnerable minorities while neutering the courts. Is this what elected officials signed up for? Does it not tug at their conscience?
The clause was inserted into the Charter as a compromise between elected legislatures and unelected judges, and seen as a “nuclear” option to rarely be used, given its draconian nature. If only. Since 2017, it has been invoked (or threatened) 14 times: once in New Brunswick, twice each in Saskatchewan and Alberta, four times in Ontario, and five times in Quebec.
The targets of such insulated legislation have ranged from religious and linguistic minorities, transgender youth, striking teachers and homeless encampments. And it’s becoming increasingly common: Since Oct. 24, it has been invoked four times by two provinces (Quebec and Alberta). We are quickly morphing into the True North, Strong and Free – Notwithstanding.
Is it time for the nuclear option to be met by a thermonuclear one? Some have urged the federal government to see the provinces’ notwithstanding clause and raise them disallowance – the federal power to nullify a provincial law deemed unjust. And Senator Peter Harder has tabled Bill S-218, which places guardrails on the use of the notwithstanding clause at the federal level, including prohibiting pre-emptive use.
A Charter statement must accompany an infringing bill which indicates which rights are infringed, the potential effects of the bill, and why Section 1 of the Charter cannot be used instead. Section 1 allows for reasonable limits on rights. There must be full debate. Finally, a super-majority in the House is required for passage.
Bill S-218 has sparked interest at the provincial level. Manitoba’s government has tabled legislation that would require full judicial scrutiny of any future government use of the clause, making sure the public is fully informed of a court’s inquiry. Manitoba Premier Wab Kinew vows his government will never use it: “The reason is simple – because we respect human rights as they are articulated in the Charter.”
If only other premiers were so respectful of Canadians’ rights.