Bill 21 and the use of the notwithstanding clause

Will the Liberal government intervene or remain silent on the law violating freedom of expression and religion?

By Irwin Rapoport

February 12, 2024

Premier Francois Legault’s CAQ government passed Bill 21 – Act respecting the laicity of the State on June 16, 2019, with the inclusion of the notwithstanding clause (Section 33 of the Canadian Charter of Rights and Freedoms) to shield it from legal challenges.

The law, which violates freedom of expression and freedom of religion guarantees, bans provincial civil servants, teachers, judges, crown prosecutors and defenders, police officers, and others from openly wearing religious symbols. The law’s insidious nature is very apparent – it permits affected employees already working for the provincial government to continue to wear religious symbols as it bans new employees from doing so.

Bill 21 impacts all Quebecers, but it is clear that the law openly targets women in the Muslim community who wear hijabs and promotes Islamophobia, a charge that the Legault government vehemently denies.

In effect, the law prevents individuals from wearing religious symbols such as the Muslim headscarf – the hijab, the Jewish yarmulke, the Sikh turban and Christian crosses.

Bill 21 impacts all Quebecers, but it is clear that the law openly targets women in the Muslim community who wear hijabs and promotes Islamophobia, a charge that the Legault government vehemently denies. The full impact of the legislation took place in December 2021 when the Western Quebec School Board was forced to remove a teacher who taught at an elementary school in Chelsea because she wore a hijab.

The story of Fatemeh Anvari, who was assigned to a desk job, is well documented in the CTV News report Hijab-wearing teacher who lost job due to Bill 21 was ‘trying to make a statement’: Quebec lawmakers.

The report opens with the following paragraphs, which fully describe the racist and nationalist elements of the legislation:

After news broke that a teacher in Chelsea, Que lost her classroom job for wearing a hijab – in contravention of Bill 21 – some Quebec politicians doubled down, even saying the young woman did it intentionally to “make a statement.”

“The reason this teacher doesn’t have a job is because she didn’t respect the law,” said Pascal Bérubé, the Parti Québécois’s critic on secularism, on Thursday morning.

“The law is for everyone. She tried to make a statement wearing a hijab.”

Bérubé said Anvari “has to make a choice: her job or religion,” he said. “[They’re] not going well together.”

Fatemeh Anvari, a newly hired teacher, was teaching a Grade 3 class at Chelsea Elementary School. She was very much appreciated and respected by many parents and students, and her departure angered the community in Western Quebec. Her situation garnered national attention and highlighted the inaction of the federal government.

‘When Bill 21 was passed and received royal assent on the same day, the federal government, led by Liberal Prime Minister Justin Trudeau, was silent and, at this point, said that it would only intervene when the case arrived at the Supreme Court.’

Now let’s be clear. Before Bill 21, Quebec already had a separation of church and state. Bill 21 is sadly accepted by a majority of people in the French Canadian community while the great majority of members of the English and cultural communities, 2.2 million people, oppose it. It should be noted that Beryl Wajsman, editor of The Suburban, and CJAD mid-morning host Elias Makos are the rare exceptions of members of the English community media – they eagerly endorse Bill 21. Makos, based on his comments, constantly stresses the need for Bill 21 and makes it a point to question why elected officials, including the chair of the English Montreal School Board (EMSB), oppose it. The EMSB along with other groups are taking Bill 21 to court.

When Bill 21 was passed and received royal assent on the same day, the federal government, led by Liberal Prime Minister Justin Trudeau, was silent and, at this point, said that it would only intervene when the case arrived at the Supreme Court. The Conservative Party accepts that this is a provincial matter and will not intervene. Neither party wants to risk offending voters in the French community.

The Quebec Court of Appeals is now preparing a ruling on the law. States the Wikipedia page for Bill 21:

The National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA) filed a legal challenge against the law, which aimed to stay its application. The groups argue that the law is unconstitutional, irreparably harms religious minorities, and constitutes “state-sanctioned second-class citizenship.”[55] The Quebec Court of Appeal later granted the petitioning organizations leave to appeal the claim for an injunction.[56] The Coalition Inclusion Quebec announced a challenge to the ruling at the Quebec Court of Appeal in order to strike down the entire law.[57] A 29-day hearing into challenges to the law was heard in the Quebec Superior Court in 2020.[58]

In April 2021, Quebec Superior Court judge Marc-André Blanchard ruled that the law violated the freedom of expression and religion of religious minorities (especially Muslim women).[2][3] Blanchard stated the law “in one way violat[es] their freedom of religion, and in another, [does] the same in regards to their freedom of expression, since clothing constitutes both pure and simple expression, and also the manifestation of a religious belief.”[59] Nevertheless, he upheld most of the ban as the government had invoked the notwithstanding clause. However, he ruled that the provisions were unconstitutional, to the extent they applied to English-language school boards, as the notwithstanding clause cannot be used to restrict minority language rights protected by the Canadian Charter of Rights and Freedoms. Similarly, the notwithstanding clause cannot be used to restrict rights granted by s. 3 of the Canadian Charter to elected members of the legislative assemblies, so the law was unconstitutional to the extent it purported to apply to members of the National Assembly.[60]

Thus far, we have no idea when a ruling will be issued by the panel of three judges.

On February 7, the provincial government announced it would introduce a bill to renew the protection of the notwithstanding clause to shield it from legal challenges based on Sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms. The CTV News report, Bill 21: Quebec set to renew notwithstanding clause for another five years, describes the situation well.

‘On February 7, the provincial government announced it would introduce a bill to renew the protection of the notwithstanding clause to shield it from legal challenges based on Sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.’

The CAQ will have the support of the Parti Québécois and Québec Solidaire, while the Quebec Liberals, who voted against Bill 21, will oppose the extension of Section 33 to protect Bill 21.

The Canadian Press reported: “The minister responsible for secularism, Jean-François Roberge, will propose renewing the use of the notwithstanding clause first invoked in June 2019 when the law was adopted, his office confirmed to The Canadian Press.”

Just after Bill 21 was passed, I met with Anthony Housefather, the Liberal MP for the Mount Royal riding, at his Cote des Neiges office. I asked Anthony, whom I know personally, if he would call on the prime minister to use Section 90 of the British North America Act (BNA Act) to disallow the law. He rejected the option, and when I brought up the option of having Bill 21 referred to the Supreme Court in the reference case, he also refused, stating that the law did not fit into the category of Supreme Court references. I was disappointed, and due to Trudeau not intervening directly and rapidly, we are living with Bill 21 daily.

Anthony also rejected calling on Trudeau to disallow Bill 96, which amends and strengthens Bill 101 – The Charter of the French Language, as well as other provincial laws, and referring it to the Supreme Court as a reference case. Former federal Justice Minister David Lametti also rejects using disallowance for Bills 21 and 96, telling the media that the federal government does not have the authority to repeal provincial laws and refer both laws to the nation’s highest court.

Disallowance permits the federal government to repeal provincial law for up to one year after they receive royal assent. It was last used in 1943 to quash a law passed by the Alberta government to prevent members of the Hutterite community from purchasing land in the province.

As noted, the federal government, despite concerns about the use of the notwithstanding clause, refuses to intervene in Bill 21 until it reaches the Supreme Court, which could take years.

And yet, in the Fall of 2022, Trudeau rapidly condemned Ontario Premier Doug Ford for even considering using the notwithstanding clause to prevent teachers from going on strike. The CTV News report, Trudeau slams Ford government’s ‘attack on people’s fundamental rights’, perfectly illustrates the difference between Quebec’s use of the notwithstanding clause and the rest of Canada.

‘Disallowance permits the federal government to repeal provincial law for up to one year after they receive royal assent. It was last used in 1943 to quash a law passed by the Alberta government to prevent members of the Hutterite community from purchasing land in the province.’

Where Trudeau has refused to scold and condemn Legault and CAQ, he came down like a ton of bricks on Ford and his Progressive Conservative government. Here are crucial elements of the report, which I cite in detail:

Prime Minister Justin Trudeau says he spoke with Ontario education unions Friday morning as they took part in what the province is calling an “illegal” strike and reiterated he was “extremely worried” about the use of the notwithstanding clause to mandate a contract with workers.

Trudeau made the comments while speaking in North York about his government’s GST credits for families.

“It is a very, very serious thing to suspend people’s fundamental rights and freedoms,” he said. “The proactive use of the notwithstanding clause is actually an attack on people’s fundamental rights and, in this case, is an attack on one of the most basic rights available – that of collective bargaining.”

“I think there are a lot of people, a lot of parents like me, who have kids in Ontario schools that are concerned about the job action, about the strikes, but I can tell you, all parents should be extremely worried about the suspension of our most fundamental rights and freedoms.”

He added that the federal government is looking at “all options” to protect those freedoms, however, he did not go into detail about what those options could be.

This isn’t the first time Trudeau has spoken out against Bill 28, an Ontario law that uses the notwithstanding clause to override sections in the Charter of Rights and Freedoms to make it illegal for workers to strike.

‘Trudeau now has an opportunity to act decisively and stress that no provincial government should even think about using the notwithstanding clause to violate individual rights and freedoms and openly attack minority communities.’

The bill also legislates a four-year contract onto the Canadian Union of Public Employees’ (CUPE) 55,000 members, which includes custodians, administrative staff and educational support workers.

Trudeau now has an opportunity to act decisively and stress that no provincial government should even think about using the notwithstanding clause to violate individual rights and freedoms and openly attack minority communities.

First, the PM could issue a public warning to Legault that he must shelve the legislation that would renew the notwithstanding clause, sending a strong message.

Second, Trudeau could publicly state that he will disallow the bill the moment it receives royal assent. Many provincial governments would be upset by such an action, but Canadians who care about the protection of rights and freedoms would be thrilled. Let us not forget that the federal Liberal Party constantly states that it is the champion and defender of rights in Canada.

Third, the Liberal government could refer the law to the Supreme Court, which would force the justices to address the use of the notwithstanding clause by provincial governments, especially Quebec’s, to shield laws from legal challenges.

I fully expect Justin Trudeau to be silent, along with Conservative Leader Pierre Polievre and NDP Leader Jagmeet Singh. They do not want to risk losing electoral support from the 6.8 million-strong French community.

Clifford Lincoln, when he resigned as the minister of the environment in Robert Bourassa’s Quebec Liberal government when it passed Bill 178 in 1988, famously said in the National Assembly that “rights are rights are rights.”

Lincoln was spot on, and his words are often cited in cases where rights are under threat. That the federal government allows Bill 21 to exist in Canada is heinous and worrisome. Now is the time for the federal government to act decisively and fast, just as did when Doug Ford looked to use the notwithstanding clause in 2022.

Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the opinions of WestmountMag.ca or its publishers.

Feature image: Dannykronstrom, CC BY-SA 4.0, via Wikimedia Commons