--What is the Notwithstanding Clause? and Why Does It So Worry the Premier of Québec Regarding Laws 21, 40, and 101? A layman’s opinion
First things first. It is an extremely rare occurrence to have a Notwithstanding Clause within the constitution of a country. Canada and Québec came up lucky?/unlucky? in the legal lottery, and we are certainly stuck with one.
Section 33 of the Canadian Charter of Rights and Freedoms states: 33.(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
In his recent ruling regarding Law 21: An Act respecting the laicity of the state, Justice Marc-André Blanchard found in favour of a coalition of groups appealing sections of Law 21. The Justice agreed with the appellants on section 23 regarding Minority Language Educational Rights and the jurisdiction of English School Boards in Québec in regards to their employees.
More disturbing to the Coalition avenir Québec government led by Premier François Legault are the Justice’s statements in relation to the use of the Notwithstanding Clause regarding section 2 of the Canadian Charter:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
Even more disturbing, you would think, especially to Quebecers of libertarian thought, is the CAQ’s repeated use of closure (le bâillon) by a majority government to override its own Charter of Human Rights and Freedoms of Québec (chapter c-12):
3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
Adding to the Premier’s headache is the upcoming ruling on the stay of Law 40: An Act to amend mainly the Education Act with regard to school organization and governance, expected within the month. A damn good thing that section 23 is exempt from the use of the Notwithstanding Clause!
Intensifying the Premier’s migraine are recent broadcasted musings of political commentator Bernard Drainville, ex-Parti québécois Member of the National Assembly for Marie-Victorin and former Minister Responsible for Democratic Institutions and Citizen Participation, in the short lived government of Pauline Marois from September 2012 until April 2014. He wondered aloud if Justice Blanchard’s rulings would have any effects on the long awaited amendments to the Charter of the French Language (Law 101: chapter C-11) just introduced in the National Assembly last Thursday,May13th by Simon Jolin-Barrette, MNA for Borduas, Minister of Justice, Minister Responsible for the French Language, Minister for Laicity and Parliamentary Reform, Minister Responsible for the Montérégie Region, as well as Government House Leader. (Simon, the Hugo Girard of the CAQ – Québec’s strongman, who does all of the Government’s heavy lifting, promises to mow the lawns free of charge of any seniors requesting such during the extended summer break of the National Assembly when he has some spare time – but that is just an unconfirmed rumour!)
“Rights are rights are rights!” – Clifford Lincoln