Notwithstanding Clause

Constitutional Roundtable with Professors Kerri Froc and Jean-Christophe Bédard-Rubin on the QCCA decision in Hak v. Attorney General of Quebec

The Asper Centre Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian and comparative constitutional law.

We are pleased to host Associate Professor Kerri Froc (UNB Law) in conjunction with Assistant Professor Jean-Christophe Bédard-Rubin (U of T Law) for a Constitutional Roundtable on March 13, 2024 in the Solarium, Falconer Hall, Faculty of Law.

Professors Froc and Bédard-Rubin will break down the Quebec Court of Appeal’s decision in Hak et al. c. Procureur général du Québec, concerning the constitutionality of Bill 21, An Act Respecting the Laicity of the State. This appeal concerns freedom of expression, freedom of religion and equality rights, as Muslim women in Quebec who wear religious symbols such as the niqab or hijab would be prohibited from working in certain professions and in most parts of public administration, and prevented from benefitting from some public services because the law requires them to do so with their faces uncovered. The government of Quebec also pre-emptively used the override clause to prevent any constitutional challenges to the legislation. This Constitutional Roundtable will cover what this decision means for Charter rights, gender equality, and state use of the “notwithstanding clause.”

Kerri Froc is an Associate Professor at UNB Law, as well as a Trudeau and Vanier Scholar. She has taught courses at Carleton University, Queen’s University and University of Ottawa on feminist legal theory and various aspects of public law, among others.

Kerri received her PhD from Queen’s University in 2016 and holds a Master of Laws from the University of Ottawa, a Bachelor of Laws from Osgoode Hall Law School and a Bachelor of Arts from the University of Regina.

Before completing her doctorate, she spent 18 years as a lawyer, as a civil litigator in Regina, a staff lawyer for the Women’s Legal Education and Action Fund (LEAF), and as a staff lawyer in the areas of law reform and equality at the Canadian Bar Association. She is a member of the Saskatchewan and New Brunswick bars.

Assistant Professor Jean-Christophe Bédard-Rubin’s work explores Canadian constitutional culture from historical and comparative perspectives. He studied law, political science, and philosophy at Université Laval, Yale University, and the University of Toronto. During his doctoral studies, Jean-Christophe was the McMurty Fellow of the Osgoode Society for Canadian Legal History and a Joseph-Armand Bombardier Scholar. He has done consultancy work on constitution-building for International IDEA and, prior to his graduate studies, he worked in litigation for the Quebec Department of Justice.

Bédard-Rubin currently pursues two main research projects. The first is an intellectual history of the foundations of public law in French Canada. This project seeks to reconstruct the intellectual networks in which French Canadian public lawyers participated to excavate the transatlantic influences on the formation of Quebec’s legal syncretism. This genealogical reconstruction recovers the conceptual and theoretical innovations that allowed French Canadians to articulate a genuine theory of the state outside of the revolutionary framework. In so doing, this work sheds a different, somewhat oblique light on Canada’s constitutional experience and questions its status in comparative constitutional scholarship.

The second research project investigates judicial bilingualism in Canada. Using mixed social science methods, this project explores the various empirical impacts of bilingualism on judicial behaviour, the normative significance of legal bilingualism for the authority of judicial decisions, and the ways in which language shapes the dominant conception of the judicial role in Canada’s French and English public spheres.

Jean-Christophe’s work has been published in English and French in the Review of Constitutional Studies, the Canadian Journal of Law & Society, the Osgoode Hall Law Journal, the Bulletin d’histoire politique, and the International Journal of Canadian Studies, amongst others.

All are welcome * Light lunch provided * No registration required

Challenging Quebec’s Secularism Bill despite its use of s.33

Posted on by Tal Schreier

by Jeffrey Wang

On June 16th, 2019, Quebec passed An Act respecting the laicity of the State (Bill 21). This bill was controversial for banning the wearing of religious symbols, such as hijabs, niqabs, turbans and kippahs, for some public employees, including some teachers and public servants with state-sanctioned power to exercise coercive authority, such as police and prosecutors. It also contains the notwithstanding clause. One day after its adoption, the CCLA and National Council of Canadian Muslims (NCCM) filed an application to stay the application of Bill 21. The claimants present five fascinating arguments on the unconstitutionality of Bill 21 despite its override on Charter rights.

Firstly, the applicants claim that Bill 21 is ultra vires. According to Saumur, Henry Birks, and Big M Drug Mart, the regulation of religious observance for a moral purpose is the sole jurisdiction of Parliament. As stated in its preamble, the purpose of Bill 21 is to affirm the laicity of the State. In addition, s.6 and s.8 of Bill 21 can be considered criminal legislation, both with prohibitions and sanctions.

Secondly, the applicants argue that Bill 21 is impermissibly vague as to violate the rule of law. Particularly, Bill 21 defines religious symbol as something that is worn for a religious purpose or something that can be reasonably considered religious. Both definitions are vague. Firstly, people can wear the same item for different reasons – wedding bands, for example, have religious significance to some but not others. Dressing modestly can have religious significance to Muslim women and wearing hats can have religious significance to Jewish men. Moreover, since there are so many religions within Canada, it is impossible to identify all religious symbols. Thus, it will depend on the knowledge of individual people to identify symbols covered by Bill 21. In addition, enforcement is also left to individual organizations. This will create a chaotic and arbitrary environment in which each organization will allow and disallow different items, with different consequences. The rule of law mandates that people know the prohibitions and penalties of a law in advance, which Bill 21 clearly violates.

Thirdly, the applicants argue that Bill 21 modified the architecture of the Canadian constitution by changing the inclusive nature of public institutions. In the Secession Reference, the SCC recognized respect for minority rights as an organizing constitutional principle. Thus, unilaterally altering this principle is impermissible. The applicants argue that interference with certain rights may violate the basic constitutional architecture even without the Charter. For example, pre-1982, if a government had barred religious minorities from voting, this would have unconstitutionally altered Canadian democracy. Similarly, respect for minority rights within Canada’s democracy means that all citizens can participate in public institutions, regardless of the notwithstanding clause. Bill 21 violates this principle.

Fourthly, the applicants argue that Bill 21 affects judicial independence. S.3 of Bill 21 applies to judicial institutions, yet s.5 exempts Superior Court judges and Court of Appeal judges from complying with laicity. With respect to the judges that Bill 21 does not exempt, this infringes the requirements of judicial independence by imposing a requirement that subjects them to discipline. Under s.100 of the BNA Act, the state cannot impose a condition that impacts a judge’s security of tenure. The applicants further argue that many other actors within the judicial institution, such as clerks, justices of the peace, sheriffs, etc., must still comply with the act. Since these actors play such as important role within the legal system, they are also subject to the guaranteed administrative independence of the courts.

Fifth, starting at paragraph 156, the applicants argue that the application of Bill 21 to elected officials violates s.3 of the Charter. S.3 of the Charter includes the right to qualify for membership in the House of Commons or a provincial legislature. By applying s.8 of Bill 21 to elected officials, it excludes individuals who cover their face from this membership. The applicants argue that this is not justified under s.1 since state laicity is not a pressing objective and a total ban is not a minimal impairment of rights.

The decision of Justice Michel Yergeau was released on July 18, 2019, denying the stay. Justice Yergeau did not focus on the constitutional aspects of the case, but rather deferred to interlocutory injunction procedures. Referencing past case law, he notes that “constitutional disputes are not…amenable to the expeditious and informal procedure of the interlocutory injunction”[1] and that “only a trial judge will be able to [decide on the merits of the constitutional arguments].”[2] Yergeau J’s decision is currently being appealed.

Regardless of the outcome, the claimant’s arguments show that although the Charter thoroughly protects our rights, our constitutional culture of rights protection has evolved beyond the Charter’s parameters. Even without the Charter, citizens can turn to federalism and the unwritten constitution to continue to seek protection from majoritarian rule. The results of the stay may have direct consequences for future uses of s.33, which may no longer be seen as the legal “get-out-of-jail-free” card for the legislature.

Read the CCLA’s factum here.

[1] Hak c. Procureure générale du Québec, 2019 QCCS 2989, para 58

[2] Ibid, para 146

Jeffrey Wang is a 2L JD Candidate at the Faculty of Law.

Above the Law? Understanding the Notwithstanding Clause

Posted on by Tal Schreier

By Catherine Ma

On September 20, 2018 the David Asper Centre for Constitutional Rights convened a panel with U of T Law Professors Yasmin Dawood and Lorraine Weinrib, and Goldblatt Partners’ Steven Barrett to discuss the constitutional challenge to the Better Local Government Act. The proposed legislation would have reduced the size of Toronto’s city council in the midst of its municipal election, as well as ending mandatory election of regional councillors across all regional municipalities. Superior Court Justice Edward Belobaba struck down the legislation, finding that it was an unjustified infringement to s.2(b) of the Charter. The Court of Appeal of Ontario ultimately granted a stay of the Superior Court’s decision until a full appeal could be heard after the election. Its effect was allowing the Better Local Government Act to govern the 2018 municipal elections in Ontario.

Before the Court of Appeal rendered its decision, Ontario’s Premier Doug Ford had threatened to invoke the notwithstanding clause if a stay was not granted. The notwithstanding clause allows the federal government or a provincial government to enact legislation that overrides certain fundamental freedoms, legal rights, and equality rights guaranteed in the Charter. Premier Ford further warned that he would not hesitate to use the notwithstanding clause in the future, without providing specific details.

The Panel Discussion

The panelists all provided unique perspectives regarding the constitutional challenge to the Better Local Government Act and the notwithstanding clause itself.

Above the Law panelists: Prof Yasmin Dawood, Prof Lorraine Weinrib, Steven Barrett [click on photo for link to webcast of panel]

Professor Dawood summarized the Superior Court and Court of Appeal decisions. She noted the that it was “novel” to argue that the Better Local Government Act infringed s.2(b) by depriving voters of their right to cast a vote that would enable effective representation. She questioned whether the legislation also infringed the s.2(b) rights of political donors.  Professor Dawood ultimately concluded, “Interrupting an election midstream is inappropriate and completely inconsistent with notions of democratic and electoral fairness, even if it is the case that the provincial government has the power to do so.” Democratic legitimacy and electoral fairness requires that the provincial government consult all stakeholders before changing election laws.

Professor Weinrib focused on the principles that govern use of the notwithstanding clause. She emphasized that the drafters envisioned the notwithstanding clause as a narrow exception, used only when a Charter right would “fundamentally damage society’s stability and well-being.” She added that the notwithstanding clause cannot be applied retroactively; in this case, the provincial government cannot invoke the clause since candidates already spent resources, social capital, volunteers, and energy; and interacted with their constituents. Professor Weinrib further criticized Premier Ford for threatening to invoke the notwithstanding clause whenever the courts strike down provincial legislation as unconstitutional. She recommended asking the Supreme Court of Canada to clarify the constitutional principles that govern the use of the notwithstanding clause.

Mr. Barrett discussed specific Charter arguments made in the case, as well as the Court of Appeal’s decision. He commented that for the stay application, it was “unusual” for the Court of Appeal to examine the substantive merits of the s.2(b) argument rather than the usual factors for a stay application. He criticized the Court of Appeal for ignoring how the Better Local Government Act undermines the effectiveness of candidates’ political speech. Mr. Barrett criticized Premier Ford for threatening to routinely use the notwithstanding clause in the future as well. He warned this threat has a “corrosive effect” on judicial legitimacy and potentially judicial independence. Individuals must make it clear that using the notwithstanding clause is only appropriate in exceptional circumstances.

Other Uses of the Notwithstanding Clause

Provincial governments have rarely used the notwithstanding clause, particularly for its intended legal function. From 1982 to 1985, the Parti Québécois placed a notwithstanding clause in all of its new legislation and retroactively amended all existing laws to include such a clause in order to protest the enactment of the Constitution Act, 1982, which it had not signed. Its actions were a political protest, rather than aimed at protecting a specific law from a Charter challenge.

In 1988, Quebec’s provincial government invoked the notwithstanding clause in response to the companion cases, Ford v Quebec (AG) and Devine v Quebec (AG), which struck down provincial legislation that prohibited the public use of all languages other than French. The legislation already had a notwithstanding clause to override s.2(b) of the Charter; however, the Supreme Court of Canada held that the legislation unjustifiably infringed a similar guarantee in Quebec’s Charter of Rights and Freedoms. The provincial government then introduced a virtually identical bill, except with clauses to override the Charter and the Quebec Charter for a five-year period. Following the expiration of this period, the provincial government amended the law. The amended law did not include a notwithstanding clause.

In 2017, Saskatchewan’s provincial government used the notwithstanding clause in the School Choice Protection Act. Its use responded to Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, which held that funding non-Catholic students who attended Catholic schools was an unjustified infringement of s.2(a) and s.15(1) of the Charter. Saskatchewan Premier Brad Wall justified its use on the basis that the legislation would protect school choice for parents and students, including faith-based options. There was no political opposition to its use.

Most recently, Québec Premier François Legault threatened to use the notwithstanding clause in order to pass a controversial “secularism law.” This proposed legislation would prevent public servants – including teachers, police officers, and judges – from wearing religious garments while performing public functions. The law is widely interpreted as targeting Muslim women who wear a niqab.

It is hoped that Ford and Legault’s recent threats will not embolden others to invoke the notwithstanding clause inappropriately. In light of these threats, the appropriate use of the Constitution’s notwithstanding clause must continue to be scrutinized, perhaps as Professor Weinrib suggested by the Supreme Court of Canada itself.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018.