Bill 21: A Deep Dive into Quebec’s Secularism Law and its Constitutional Challenges

Recent hearings at the Supreme Court of Canada have focused on Quebec’s Bill 21, a law that prohibits the wearing of religious symbols in many public sector jobs. While often referred to as simply “Bill 21,” the core issue before the court isn’t the law itself, but rather the province’s use of the notwithstanding clause – Section 33 of the Canadian Charter of Rights and Freedoms – to shield it from constitutional challenges. A Quebec court had previously found the law to be contrary to the Charter, but the notwithstanding clause allowed it to remain in effect.

The Core of the Debate: The Notwithstanding Clause

The debate has evolved beyond the initial question of whether Bill 21 violates Charter rights. Instead, the focus has shifted to whether the province correctly invoked the notwithstanding clause. However, even this isn’t the complete picture. Many legal experts question whether the Court even has jurisdiction to rule on the manner in which the clause was used, citing a 1988 ruling (Ford v. Quebec) that suggests limited judicial oversight. Some intervenors are asking the Court to reconsider this precedent, exploring whether a government can preemptively invoke the clause or if a court can declare a law would have been unconstitutional had the clause not been used.

The federal government has raised another critical point: should there be a limit on how frequently a government can invoke the notwithstanding clause? They argue that repeated use transforms a temporary suspension of rights into a permanent one, undermining the original intent of the clause as an emergency measure.

Beyond Procedure: The Real Issue – The Charter Itself

Ultimately, the case transcends procedural questions about the notwithstanding clause. The underlying concern is the future of the Charter of Rights and Freedoms. If the use of the notwithstanding clause becomes routine, the Charter risks becoming a mere suggestion rather than a guaranteed protection of fundamental rights. This isn’t a hypothetical concern; governments, particularly conservative ones, are increasingly using the clause preemptively and frequently, raising alarms about its potential to erode constitutional protections.

The Charter: A Unique Feature of Canadian Governance

It’s crucial to understand the Charter’s place within Canada’s constitutional framework. Contrary to some arguments, Canada doesn’t have a historical tradition of absolute parliamentary supremacy. From the colonial era onward, imperial law and, later, the British North America Act, placed limits on legislative power. The courts have always been responsible for enforcing these boundaries.

The Charter itself isn’t an anomaly. Most OECD countries have similar constitutional provisions protecting fundamental rights. Germany’s Basic Law, Italy’s “Rights and Duties of Citizens,” and Japan’s “Rights and Duties of the People” are just a few examples. The exceptions – Britain, Australia, and New Zealand – stand out as outliers.

The Importance of Judicial Review

Furthermore, most countries with constitutionally protected rights empower their courts to review legislation and strike down laws that conflict with the constitution. The Netherlands is a notable exception, but even there, judicial review is not entirely absent. The unique aspect of the Canadian system is the notwithstanding clause, which no other country possesses.

Interestingly, countries with robust judicial review systems generally have a better record of protecting rights, as evidenced by indices like Freedom House’s “Freedom in the World” report and the V-Dem Institute’s “Liberal Democracy Index.” Canada, with its justiciable Charter, has historically performed better on these metrics than Britain and Australia.

A Call for Action: Reasserting the Charter’s Authority

The current trend of increasingly frequent use of the notwithstanding clause represents a significant departure from the original understanding of its limited application. The federal government should consider utilizing its disallowance power – a rarely used constitutional tool – to address laws that violate Charter rights. Allowing the erosion of the Charter is unacceptable, especially given the sustained attacks on the rights of vulnerable minorities across the country.

The time to act is now. Protecting the Charter is essential to upholding Canada’s commitment to justice, equality, and fundamental freedoms.

Further Reading:

• Ottawa clashes with Ontario, Alberta over notwithstanding clause at Supreme Court Bill 21 hearing – The Globe and Mail
• Opinion: In Quebec, laïcité has become its own kind of religious orthodoxy – The Globe and Mail