Opinion: Notwithstanding clause's pre-emptive use is a threat to our very freedom

The recent Quebec Court of Appeal judgment on Bill 21 is an especially sad moment for all those who believe in a society where fundamental rights and freedoms hold pride of place.

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While accepting court decisions as a focal part of our democratic system, I find the recent Quebec Court of Appeal judgment on Bill 21 an especially sad moment for all of us who believe in a society where fundamental rights and freedoms hold pride of place.

As a loyal citizen of Quebec and Canada, I have always felt safeguarded by the protective umbrella of our provincial and federal charters of rights and freedoms. Both are inspired by the Universal Declaration of Human Rights, that remarkable instrument adopted by the United Nations in 1948, which enshrined the rights and freedoms of all human beings as inherent and inalienable.

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The Quebec Charter of Human Rights and Freedoms was adopted unanimously by the National Assembly in 1975, the result of multi-party co-operation. First explored by the Union Nationale of Daniel Johnson, the idea was brought to life under the Liberal mandate of Premier Robert Bourassa. His minister of justice, Jérôme Choquette, championed its enactment, whilst having enjoyed the input of Jacques-Yvan Morin, then the PQ leader of the Opposition. The charter became Quebec’s primary statute.

After its amendment in 1983 to improve its provisions, Premier René Lévesque expressed his pride in the charter by having it sent to every household in Quebec.

As to the Canadian Charter of Rights and Freedoms, it became the centrepiece of our 1982 Constitution, after its patriation from the United Kingdom. Regrettably, as a compromise, a notwithstanding provision was included as Section 33 of the charter. Its proponents had argued for its need as a measure of temporary relief — for instance, in cases where it would require more time than foreseen to enforce a court decision. Reluctant as they were to accept the measure, both Prime Minister Pierre Elliott Trudeau and Justice Minister Jean Chrétien became convinced that the risk of its being used was minimal and even improbable.

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In his overview of the Constitution Act of 1982 (Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982), the late Morris Manning, one of Canada’s eminent jurists, included an ominous warning about the notwithstanding clause: “If our freedom of conscience or religion can be taken away by a law which operates notwithstanding the charter, if our right to life or liberty can be taken not in accordance with the principles of fundamental justice, what freedom do we have?”

How prophetic he was. The Court of Appeal decision on Bill 21 effectively means that the pre-emptive use of the notwithstanding clause renders our courts and judges powerless to assess and rule on the substance of a statute or its contested sections. It is germane for us to ask what is then the value of the charters, and if the wanton use of Section 33 has rendered them mere written pieces of paper.

Sadly cynical is Premier François Legault’s victory cry at seeing his deliberate use of the notwithstanding clause proven as a surprisingly effective tool. It gives licence to an autocratic government with a clear majority of seats to deny with impunity the protections of our charter rights, treating them as a mere inconvenience. It is mortifying to note that the notwithstanding clause is a Canadian creation.

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We should count on our federal government as the constitutional and moral guarantor of our rights and freedoms. Sadly, our federal administration, and indeed our Parliament including all its parties, has been in deep slumber over the crucial issue of our fundamental rights. It was this government and Parliament that voted in favour of a Bloc Québécois motion in support of undemocratic Bill 96. It was also this government and Parliament that adopted Bill C-13 (incorporating Bill 96 and its notwithstanding clause) by a majority of 301 MPs to one, the latter being courageous Anthony Housefather.

It is more than high time for our federal government to hear the loud call for urgent action regarding our rights and freedoms. That means considering a Supreme Court intervention on Bill 21, as well as a reference on the deliberate and pre-emptive use of the notwithstanding clause. The defence of our fundamental rights and freedoms cries for justified limitations as to its use. Otherwise, to echo that eminent voice of wisdom, what freedom do we have?

Clifford Lincoln resigned from the Quebec cabinet in 1988 over the use of the notwithstanding clause in Bill 178. He later served as a federal MP. He lives in Baie-D’Urfé.

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