Every five years, governments have to justify overriding Charter rights. It could be a lot worse — and often is
François Legault’s CAQ government is currently engaging in an exercise not often seen in this country: It’s essentially re-litigating Bill 21, the five-year-old law barring certain civil servants (notably teachers, police officers and Crown prosecutors) from wearing religious symbols on the job. That bill is shielded from destruction in the courts by the notwithstanding clause, which has to be renewed every five years. So Legault has to make the case for Bill 21’s necessity to the Quebec electorate all over again.
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A lot can change in five years. Legault is a shadow of his former self, popularity-wise. When Bill 21 passed in June 2019, Léger had pegged the premier’s support in the polls at 46 per cent. Léger’s most recent poll, conducted last week, had the CAQ at just 25 per cent support. Quebec’s teacher shortage has only gotten worse since then — and while you can’t blame that in any large part on Bill 21, it does make it look even sillier. And Legault has only been expanding his attacks on minorities, including a nonsensical attack on McGill and Concordia universities in the name of keeping Montreal safe from rampaging anglophones.
This week Legault referred to Bill 21 as necessary to protect “social cohesion,” which is a hell of a swing from a guy who’s been undermining social cohesion like it’s his job — most notably a decades-old happy détente between anglophones and francophones as to the primacy of French in Quebec and what measures are reasonable to protect it. In an alternate-universe Quebec somewhere, support for Bill 21’s restrictions might be diminishing in the National Assembly.
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Alas, in real-world Quebec, it is not diminishing. Quite the contrary. The left-wing Québec Solidaire, currently the third party in the National Assembly, has always opposed Bill 21. At the time of the bill’s original passing, QS naturally opposed using the notwithstanding clause to ram it through.
QS says it still opposes Bill 21 … but now it supports using the notwithstanding clause in the Canadian Charter of Rights and Freedoms to keep it in place, because, per house leader Alexandre Leduc, “QS does not recognize the Canadian Charter of Rights and Freedoms.”
“The federal Charter was brought in unilaterally with the patriation of the constitution of (Pierre) Trudeau,” Leduc told Le Journal de Québec. “(The Charter) refers to multiculturalism, which is not our … political doctrine.”
“So, we are comfortable that there is a derogation clause in the federal Charter because we are sovereigntists, because we are nationalists,” Leduc explained, of the Charter whose existence his party does not recognize.
It’s a brand new incoherent low point, really, and there could be lower points to come. As it stands, the desiccated husk of the Quebec Liberal Party — which won just a single seat outside the Montreal area in the 2022 election — is the only one left standing against Bill 21 and the notwithstanding clause. “The notwithstanding clause … is so broad that it suspends fundamental rights and freedoms that have no connection to Bill 21,” interim party leader Marc Tanguay said last week.
But among the few big names in line to potentially become permanent leader of the party is Denis Coderre, the former federal MP, mayor of Montreal and all-purpose buffoon. In an interview late last month with journalist Patrick Lagacé, he made clear that a Quebec government led by him would “respect Bill 21.”
“Bill 21 is here to stay,” Coderre averred.
It’s depressing as all hell. But it could be worse. Canadian courts issue pretty daft decisions all the time that quickly (if not instantaneously) become unchallengeable law — not just the Supreme Court, but lower courts when no one decides (or has the money) to appeal their dodgy judgments. Those laws never have to be revisited, unless judges themselves decide it’s time for whatever reason.
Bad as it is, it’s better when you consider there’s no alternative. You’ll read endless op-eds to the contrary, but the Charter will not be amended to restrict when the notwithstanding clause can and cannot be used. It just won’t. Ever. Fact. The reason the clause doesn’t impose preconditions on its usage reflects the fact that we wouldn’t have a Charter were it not for the override provision.
It remains deeply unfortunate that Quebec has fallen down this rabbit hole. The hope, as ever, lies with younger Quebecers, who to their credit have much less interest than their political leaders in victim-based nationalism, and who tend to see barriers to bilingualism and multilingualism in the name of protecting French as the idiocies they are.
Every five years, forever, they’ll get an opportunity to win the argument.
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