A photo of Quebec Premier Francois Legault used the notwithstanding clause to protect his Bill 96.
Quebec Premier Francois Legault used the notwithstanding clause to protect his Bill 96. Credit: Francois Legault campaign Credit: Francois Legault campaign

Civil rights lawyers are now sounding alarm bells about the willingness of provincial governments to use the notwithstanding clause, a rarely-used, last-minute addition to the repatriated Canadian constitution of 1982.

In 2018, Ontario Premier Doug Ford expressed his willingness to use the clause in order to reshape Toronto’s city hall, but due to a court ruling, in the end he didn’t have to.

That same year, Francois Legault would be elected as Quebec Premier, the first leader of the right-leaning CAQ Party. Within 24 hours of being elected, Legault promised to use the notwithstanding clause to override any court decisions that interfered with his efforts to ban religious symbols (like keepas, turbans or hijabs) from those working for the government. He followed through with that promise, wrapping Bill 21 (which bans all such symbols and is now law) in the notwithstanding clause.

Legault repeated the same tactic with the ascension of Bill 96 into law in early June. The Legault government says the legislation is meant to protect the French language in Quebec, but critics point out that it has far-reaching implications for healthcare, education and the law. Doctors must treat their immigrant patients only in French six months after they arrive, for example. Strict limits on enrolment in English-language colleges are also included in the law, and those engaged in the Quebec legal system will no longer have the right to be addressed in English.

At the heart of Legault’s claims sits a glaring contradiction: while insisting none of 96 is discriminatory, the government will sidestep any actual scrutiny by the courts by using the notwithstanding clause. It’s a legal bait and switch.

Some have argued that Quebec’s bypassing of certain federal laws is understandable, given that they were never part of repatriating the constitution in the ’80s. But consider that the current Quebec government is using the notwithstanding clause to also bypass their own provincial human rights Charter. Once the pride of Quebec, this charter has been visionary, notably the first in North American to enshrine rights for gays and lesbians (in ’77).

We can’t say we weren’t warned. When Prime Minister Pierre Elliott Trudeau was working to craft our own constitution in the early ’80s, he hit a considerable roadblock when the Supreme Court insisted he must have the provincial governments on board with the new deal. Some premiers at the time were uncomfortable with the Canadian Charter of Rights and Freedoms, and thus the notwithstanding clause was created, a clause that allows any of the provincial governments (or federal government) to opt out of legislation or bypass court rulings if they had a majority of seats to do so.

Svend Robinson, then a rookie MP and the NDP’s justice critic, cried foul, pointing out that having such a clause was ludicrous. It made it far too easy, he argued, for governments to override the rights of individual citizens in order to ram legislation through. Serving in parliament from 1979 to 2004, he was the first out gay MP in Canadian history.

Robinson actually voted against the new constitution for three reasons: the lack of Quebec’s endorsement; the watering-down of Indigenous rights; and, most importantly, the inclusion of the notwithstanding clause.

His warnings have become downright eerie, given the situation we are now in, with premiers routinely either using the clause or threatening to use it.

Rabble caught up with Robinson to discuss his memories of the constitutional wrangling while he was on a BC ferry.

Rabble: So when did you first learn about the notwithstanding clause?

Svend Robinson: I was a new young member of parliament, elected in ’79. Trudeau brought in the package to repatriate the constitution in the fall of ’80. I was the justice critic. Broadbent and the NDP jumped on board immediately. I said hold on a second, this charter of rights, especially the equality section, is just way too weak. The original charter was weak, and I said we must push for a much stronger charter. I voted against the original package. But it went through.

But Broadbent to his credit put me on the committee. It was a committee of 25 members of Parliament, ten senators, 15 MPs, and two of us were New Democrats, myself and Lorne Nystrom. We strengthened the Charter significantly from the original package. I got a guarantee from Chretien that in future judges might be able to include sexual orientation, for example. And I got that on the record, and that was later cited by the Supreme Court. So we came out of that process in the spring of ’81, with a Charter that I strongly supported. Then the premiers got to it. There was the court action, where the Supreme Court said that this had to have some support from the provinces.

Rabble: What was the main problem?

SR: Some premiers were very opposed to a Charter. So a compromise had to be proposed. There were several things that had to be changed. One was the notwithstanding clause, the other was to change the wording of the Indigenous rights section to the existing aboriginal rights, which was seen as a betrayal by Indigenous leaders, which it was. The NDP had to decide if they were going to support this. I said we can’t support this. The other reason I didn’t support it is because I felt we should have made more of an effort to bring Quebec on board.

Rabble: What happened then?

SR: There were two of us who voted against the final package. I spoke very publicly about why the notwithstanding clause was such a bad idea. I said it made a mockery of the Charter when all you had to do was to explicitly override it. Jim Manly, who at the time was the aboriginal rights critic, also voted against it. I also spoke on the aboriginal rights provisions, which was also a mistake (the compromise). Tom Berger, who was then a BC Supreme Court judge, spoke out against it, and judges aren’t supposed to take such stances, so he was denounced by Trudeau and Chretien. At the end of the day, Berger ended up resigning.

Rabble: But at the time, people warned that without the notwithstanding clause, none of this would get through.

SR: The compromise with the provinces to salvage something of the Charter. I said at the time that the sacrifice was too great, and I still think so.

Rabble: It’s an absurd thing to have in a constitution. Politicians stated openly that they would use the clause to bypass the Charter, in particular when same-sex marriage rights were not in place but it looked like the courts would lead the way in granting them. Stockwell Day admitted he would consider using the clause to block same-sex marriage in the event of such a scenario when I interviewed him in 2000.

SR: I remember the whole debate around equal marriage, and it wasn’t just Stockwell Day, it was members of the Liberal Party who were suggesting the government use it to stop legal recognition of same-sex marriage. 

Rabble: So your warnings turned out to be very prophetic.

SR: But it was so clear. If you take these fundamental rights seriously, you can’t have a clause like this. Then there was a question about whether or not equal rights for women would even be up for grabs, but luckily we got that cleared up.

Rabble: So you voted against the final constitutional package?

SR: Yes, just me and Jim Manly who voted against it. We both spoke out on Indigenous rights.

Rabble: What’s disturbing to me right now is that in Quebec, the provincial charter has always been a point of pride. It’s the first place in North America to have gay rights, for example. But with Bills 21 and 96, the government has used the notwithstanding clause to bypass that charter, effectively rendering it meaningless. I’m a bit shocked it’s being done so casually.

SR: The constitutional package is something Quebec never voted for. They were not on board, which was one of the main problems with it.

Rabble: Quebec nationalists see their culture as threatened, so they argue using the notwithstanding clause is justified in terms of legislation that protects the French language, which they argue is threatened in Quebec. What do you say to them?SR: What I said applies everywhere. These rights are not absolute. If they can make the argument that certain legislation is “demonstrably justifiable,” then they can have their day in court. But to just opt out entirely and say that these rights do not apply period, that governments can simply ignore the rights charter, is not acceptable, which is precisely what the notwithstanding clause allows for.