Is it time to ditch the notwithstanding clause?

Recent actions by Ford in Ontario and Legault in Quebec reveal that rights Canadians thought they had can be taken away

Quebec Premier Francois Legault is denying the existence of systemic racism in Quebec.

In the wake of the hate-motivated pickup truck attack that killed four members of a Pakistani-Muslim family in London on Sunday, Legault described as “totally unacceptable” comments made by Liberal  minister Omar Alghabra that Quebec’s Bill 21, which bans the public service from wearing religious symbols, is “part of the environment that Muslim Canadians feel that they are being targeted by.”

It would not be a stretch to say in a province where anti-Muslim sentiment is higher than any province in Canada. It’s also the province where in 2017 Alexandre Bissonnette killed six Muslim worshippers and critically injured fives others in a mass shooting at Quebec City’s Islamic Cultural Centre.

His hate-filled attack was fueled  by the reactionary populist demagoguery of Donald Trump.

There is a causal link between the reactionary words of political leaders who weaponize demagoguery and the destructive actions of their blindly obedient populist base. 

In the case of Quebec, Legault invoked the notwithstanding clause to pass Bill 21 in a move akin to putting the rag to the flame after Quebec Superior Court Justice Marc-Andre Blanchard ruled that it violates religious freedom. 

Don’t hold your breath waiting for him to remove the ultimate Montreal religious symbol from public view – the Christian cross atop Mount Royal. But Legault has threatened to use the notwithstanding clause again to uphold Bill 96, Quebec’s law unilaterally declaring Quebec a nation and French “the only official language  in the province.”

There is no need to shore up any of that constitutionally. Parliament has already recognized Quebec as a nation. And French is the second Official Language of Canada. But Quebec’s Bill 96 isn’t really about language. It’s about nationalism.

Tom Mulcair, former leader of the federal NDP party from Quebec, clarified the rule of law and constitutional limits of Legault’s Bill 96 in the Montreal Gazette.

“Section 52 of the 1982 Constitution reminds us that: ‘The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect,’” Mulcair writes.

In Ontario, meanwhile, another Conservative premier, Doug Ford, has given the vulgar middle finger to the judicial check issued on June 8 by Justice Ed Morgan of the Ontario Superior Court on election spending to use the notwithstanding clause to impose American-style right-wing curtailment of voting rights in Ontario. In his decision, Morgan states that the Ford government’s election spending law only protected the government’s potential for “partisan self-dealing” and that the current law was of “no force or effect.”

The notwithstanding clause must be rendered of no force or effect. Nothing must be allowed to nullify human rights in Canada.

The clause speaks only to Section 2 and Sections 7 to 15 of the Charter. But Section 26 of the Charter proclaims: “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.”

Canada’s Department of Justice website showcases the International Covenant on Civil and Political Rights and acknowledges that international human rights treaties to which Canada is a signatory are part of the law of the land. Rights mentioned in the notwithstanding clause as vulnerable are in fact protected by the ICCPR. Can rights that Canadians had prior to the existence of the notwithstanding clause be taken away? Does the notwithstanding clause nullify Canada’s international human rights obligations?

Our parliamentarians should be reminded of what former Chief Justice Beverly McLachlin said in a speech in 2005. “The Charter represents our own statement of values, made in Canada, by Canadians… the essence of what we hold dear as a people…respect for individual rights; respect for the collective interest and harmony between individual freedom and the greater good of all; respect for pluralism and a commitment to the fundamental equality of each and every one of us, religion, gender or ability.”


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