Quebec's use of notwithstanding clause in language law opens constitutional debate

When federal Justice Minister David Lametti reacted last week to the adoption of Quebec's language law reform, he took aim at the provincial government's proactive use of the notwithstanding clause to shield the law from constitutional challenges.

Lametti and other critics of Bill 96 say the government's use of that clause — Section 33 of the Canadian Charter of Rights and Freedoms — shuts down debate and prevents a proper judicial review of the legislation. The proactive use of Section 33, which permits a government to override certain provisions of the Constitution, is an "unintended negative consequence in our political system," he said.

The Quebec government, meanwhile, says its use of the clause is legitimate and necessary to protect laws that are supported by the majority of Quebecers. The government calls Section 33 "the parliamentary sovereignty provision."

Bill 96, among other things, limits the use of English — one of Canada's two official languages — in the public service and permits inspectors to conduct searches and seizures in businesses without warrants. The proactive use of Section 33 means the courts cannot declare Bill 96 unconstitutional because of its potential violations of certain fundamental rights included in the Charter.

The two other recent cases where the notwithstanding clause was invoked outside of Quebec — by the Ontario government in 2021 and by Saskatchewan in 2017 — it was used to override court decisions. Quebec is the only province to invoke the clause before judicial review.

The notwithstanding clause, Lametti told reporters, "was meant to be the last word in what is, in effect, a dialogue between the courts and legislatures. It wasn't meant to be the first word."

Emmett Macfarlane, a political science professor at the University of Waterloo who studies the Supreme Court's role in shaping public policy, said there's nothing in the Charter that outlines when Section 33 can be used. He said, however, that he doesn't think its pre-emptive use was envisioned when the Charter was drafted in 1982.

"Quebec is right to say, legally, we can use it pre-emptively and they're at least partially right to say the notwithstanding clause is a parliamentary sovereignty provision, but it's also an unprincipled use of the notwithstanding clause," Macfarlane said in an interview Friday.

"It's a political manoeuvre to avoid having that negative judicial ruling that would be inevitable if they hadn't used the notwithstanding clause."

Constitutional lawyer Julius Grey argued before the Superior Court against Quebec's secularism law — known as Bill 21 — which bans certain government employees from wearing religious symbols at work. That case is before the Court of Appeal. He said in an recent interview that the question as to how Section 33 can be used will be decided when the case reaches the Supreme Court.

Grey said he hopes the high court will rule that provinces can't use the clause as they please.

"Parliamentary sovereignty is precisely what the Charter wants to get away from," Grey said. "We all understand that parliamentary sovereignty has certain dangers — the rule of the majority can turn into the tyranny of the majority."

Benoît Pelletier, a cabinet minister in the Quebec Liberal government of Jean Charest, said he supports the Quebec government's use of the notwithstanding clause, a tool he said is "at the heart" of the separation of powers in Canada's legal system.

Section 33, he said, was included in the Charter to preserve parliamentary sovereignty but also to maintain the balance of power between the judiciary and the government.

For Pelletier, the proactive use of the provision isn't a problem because the courts can still review the legislation — a Superior Court ruling on Bill 21 that upheld most of the law was more than 200 pages, he said. In that ruling, Superior Court Justice Marc-André Blanchard found that Bill 21 violates fundamental freedoms such as the freedom of religion, but he couldn't strike those elements of the bill down because the law was shielded by Section 33.

Pelletier said he thinks the Quebec government is making "moderate" use of Section 33. "As a province, or as a nation, or as a political unit, it's normal that Quebec makes collective choices that are different from those of the other provinces."

Patrick Taillon, a constitutional law professor at Université Laval, said Quebec has been something of a "champion" of using Section 33. The province has used it more than others, he said in an interview Friday, "because it allows our elected officials to exercise a certain form of autonomy."

The Supreme Court, he added, has already upheld the preventive use of the notwithstanding clause, in a 1988 decision involving Quebec's French-language signage legislation. That decision made clear that the court's role was not to decide whether it was right or wrong to use Section 33 but only whether it conformed to the Constitution.

Macfarlane said it's not just Quebec's use of Section 33 that concerns him. The Ontario government's 2021 use of the notwithstanding clause to protect a campaign finance law was also problematic, he said.

"I don't think other provinces are immune to these populist impulses," he said. "But there obviously is something distinct about Quebec's record with the notwithstanding clause relative to all the other provinces.

-- This report by The Canadian Press was first published May 29, 2022.