Bill 21 and the Notwithstanding Clause

In 2019, when Bill 21 was introduced in the Quebec National Assembly, I got a lot of attention when I said, “The results of Bill 21 will be ethnic cleansing, not with a gun, but with a law.” Of course, self-serving politicians, starting with Legault, attacked me for using the term “ethnic cleansing.” They acted as if I had attacked Quebecers as being racist. They knew that I had stated explicitly that I was not saying that Legault or Quebecers are racist but scoring political points and sowing divisions is what the Coalition Avenir Quebec (CAQ is the current ruling party of Quebec) does best. Many journalists asked, in light of the furor my remarks had caused, if I wanted to apologize. My response was that I do not apologize for telling the truth and that the politicians supporting Bill 21 should explain why they were taking away fundamental rights enshrined in both the Canadian and Quebec Charters of Rights and Freedoms, not to mention the UN Universal Declaration of Human Rights.

The Quebec Court of Appeal decision on Bill 21

The English Montreal School Board (EMSB) and others went to court to challenge the law. At Superior Court, the judge ruled that the law was discriminatory but the use of the Notwithstanding Clause allowed them to do so. However, he said English School Boards had the right to decide their own dress codes for teachers and the notwithstanding clause did not apply to that right. Both sides appealed the judgement and now the Court of Appeal has ruled.

They basically said that the notwithstanding clause trumps everything else and, thus, would not rule on anything else. They said it was a political matter and not for the courts. I am not a lawyer but it seems to me that this is a shallow decision. The Charter clearly states that the Notwithstanding Clause (section 33) only applies to section 2 (freedom of religion) and sections 7 to 15. It does not apply to the parts of Canada’s constitution relating to minority language education nor to section 28 relating to the equality of the sexes.

I hope that this decision will be appealed to the Supreme Court. The major Federal parties say they are against Bill 21 and will join a court challenge. At the same time, they are afraid of losing votes in Quebec where Bill 21 is popular. We will see if Trudeau and Poilievre do the right thing.

Still, the arguments against Bill 21 may not prevail. Will the courts rule that the right to manage their own schools includes head coverings of teachers? Maybe, but it is not certain and even if teachers are excluded, it will not help those who want to be judges, prosecutors, police officers and so on. I think section 28 on gender equality would apply but is it discrimination against females who cannot wear hijabs when men cannot wear kippahs or turbans. The Supreme Court could rule either way in my opinion. The third argument that I have heard is that the notwithstanding clause cannot be used pre-emptively. Even if true, it won’t stop the government using the clause after the court rules.

The best solution is to get rid of the Notwithstanding clause. Contrary to what most think, this does not require the consent of all 10 provinces. Seven covering over 50% of the population is what is required but will the governments do it over the likely objections of Quebec. Currently, I doubt it but I do think it will happen eventually. Why? Governments like power, and as they are beginning to see, the Notwithstanding Clause gives them very extensive powers to trample on minority rights. I predict the clause will be used a lot more by provinces until the people across Canada realize that their rights are being taken away. Today it is Quebec’s religious minorities and with Bill 96 anyone not speaking French. It won’t stop there.

For more on Bill 21, read my earlier article, How to fight Quebec’s secularism law. For more on the Notwithstanding clause, read, Time for the Notwithstanding Clause to go.

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Dr. Bill Steinberg

Dr. Steinberg has a BSc from McGill University, a PhD in Psychology from Northwestern University, and was a professor at Concordia University. He was Mayor of the Town of Hampstead for 16 years and led the demerger battle. He was was awarded the Queen Elizabeth Diamond Jubilee Medal and is currently President of the Cochlear Implant Recipients Association.

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