Robert Libman: Bill 21 ruling exposes perils of override clause

The pre-emptive use of the “notwithstanding” provisions in the Canadian and Quebec charters of rights makes a mockery of our legal system.

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Judges or elected politicians? Who should have the last word on whether a law is fair or just? That is the essence of the debate about the notwithstanding clause.

Our country and province each have charters of human rights and freedoms that supposedly protect civil liberties and minorities. When a government passes a law that seemingly infringes on individual rights, it can be challenged before the courts. Judges hear all parties, analyze the circumstances and decide whether provisions of the law pass the litmus test of the charters or, alternatively, should be struck down.

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However, the Canadian and Quebec charters each have a clause (articles 33 and 52, respectively) allowing governments to pass laws “notwithstanding” most of the rights listed in the previous sections. It’s like reading a safety manual in which a later chapter says you can ignore most of what you just read if you find it to be inconvenient.

If a government doesn’t agree with the court’s decision, it can override the judgment by invoking the clause. Generally, that happens after the courts have pronounced.

On Thursday, the Quebec Court of Appeal ruled on Quebec’s controversial secularism (religious symbols) law, Bill 21. Instead of allowing the courts to eventually analyze whether the law was just, the government took the cavalier step of pre-emptively invoking the clause. So it was not much of a surprise the three judges concluded: “The Court is not empowered to rule on whether the Act infringes the freedoms of religion and expression or the right to equality guaranteed by the Charters.” Their hands were tied. The law — shielded by the notwithstanding clause — cannot be struck down.

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Premier François Legault crowed the decision is “une belle victoire pour la nation québecoise!” The judges even concluded the law also applies in English schools, even though the federal charter’s protection of minority language education rights is outside the reach of the notwithstanding clause.

The judgment will be appealed to the highest instance — the Supreme Court of Canada — but it’s unlikely the result will be any different. The absurdity of using the clause pre-emptively makes a mockery of our legal system. The very existence of this escape hatch renders useless the charters of rights that are meant to protect minorities from the potential tyranny of the majority — the check-and-balance against governments that naturally are driven to curry favour with the majority to win elections.

Courts are created to establish right versus wrong, be a divining rod for the truth and mete out justice. Despite what Legault said last week — questioning the independence of federally appointed appeal court judges, for which he was castigated by the Quebec bar association — judges take their role seriously in reflecting upon aspects of a case to render a decision. Sometimes, decisions may be questioned — but they are not motivated by partisan or popular considerations, nor electoral calculations that guide politicians, which can make minorities vulnerable.

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Our charters of rights already have “reasonable limits” clauses that allow judges to interpret laws flexibly, balanced by circumstances that benefit the public. For example: a law that would limit someone’s freedom of expression, from yelling “FIRE” in a crowded theatre. Judges can make suggestions of compromise to improve a law if necessary.

Many support state secularism. But after careful scrutiny, if a qualified judge determines that provisions of the law violate individual freedoms — for teachers, for example, who feel a religious obligation to wear a hijab or a kippah — they have the right to be protected, and those provisions rightfully deserve to be struck down.

But the notwithstanding sledgehammer — notwithstanding its constitutional validity — ultimately takes the “free” out of a “free and democratic society.”

Robert Libman is an architect and planning consultant who has served as Equality Party leader and MNA, as mayor of Côte-St-Luc and as a member of the Montreal executive committee. He was a Conservative candidate in the 2015 federal election. X @robertlibman

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