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The pre-emptive use of the notwithstanding clause is in the spotlight. It was front and centre during the recent Quebec Court of Appeal review of Bill 21, provincial secularism legislation that bans public employees in positions of authority from wearing religious symbols at work. Ontario Premier Doug Ford recently planned to invoke this constitutional override to prevent court challenges against back-to-work legislation for education workers.
Section 33 of the Canadian Charter of Rights and Freedoms gives provincial governments the power to override certain Charter provisions for a period of five years. Quebec’s National Assembly recently has twice pre-emptively used it: First with Bill 21, and then again with Bill 96, which harshens Quebec’s Charter of the French Language (Bill 101). Thus, Quebec has not simply taken away fundamental rights and freedoms from all Quebecers but has also limited the ability of citizens to seek redress from the courts.
Section 33 is an exceptional constitutional lever, intended to be used with discretion.
Rarely applied since the Charter was adopted in 1982, use of the notwithstanding clause is always controversial. For instance, in 1988 Premier Robert Bourassa invoked it to maintain Bill 101’s exclusions of languages other than French on outdoor commercial signs. This followed a Supreme Court of Canada decision that ruled requiring unilingual French signs violated constitutional freedom of expression rights. Five years later, the Quebec government avoided a compulsory review of the clause by introducing Bill 86, which modified the Charter of the French Language to allow the use of languages other than French on outdoor signs — as long as French is predominant.
Until recently, Quebec had been the only province to proactively invoke Section 33. The clause “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,” David Lametti, minister of justice and attorney general of Canada, has noted.
Prime Minister Justin Trudeau reacted strongly to Ontario’s plan to invoke Section 33: “Canadians themselves should be extremely worried about the increased commonality of provincial governments using the notwithstanding clause pre-emptively to suspend their fundamental rights and freedoms.” He added that “the Charter of Rights and Freedoms cannot become a suggestion. The outrage we’re seeing across the country right now … I think, is a moment for all Canadians to reflect.”
This sentiment was strongly echoed by Lametti, who has indicated the government of Canada will oppose Bill 21 when it reaches the Supreme Court.
And now, astonishingly, with its proposed updates to the Official Languages Act, the federal government is in effect accepting Quebec’s override of linguistic and human rights. This is not a matter to concern only English-speaking Quebecers. This would set a precedent that could easily be applied to francophone minorities in other provinces such as New Brunswick and Manitoba.
Bill C-13, An Act to amend the Official Languages Act would insert references to Quebec’s Charter of the French Language into the quasi-constitutional Official Languages Act. It would also incorporate, by reference, the Charter of the French Language into the new Use of French in Federally Regulated Private Businesses Act.
This new law would impose French-language obligations on federally regulated businesses such as banks and telecommunications companies. It would guarantee workers the right to work in French and consumers the right to be served in French — without the same guarantees for English employees and customers. Such businesses could opt to be subject to Quebec’s Charter of the French Language, a legal first that would constitute an unprecedented jurisdictional retreat by the federal government.
There is an apparent and troubling inconsistency here.
Federal support of Bill C-13 would knowingly legitimize Quebec’s repeated use of the notwithstanding clause to trample on the minority language rights of English-speaking Quebecers. The government of Canada is proposing to abandon a half century of official languages policy grounded in the principle that French and English, and Canada’s linguistic minority communities, possess equal rights under law. Parliamentarians would also be turning their backs on a longstanding vision of a Canada in which linguistic duality and the protection of minority rights are intrinsic values.
It is not by conferring new rights on one group while removing rights from the other that the Official Languages Act would accomplish the stated objective of protecting the French language and the vitality of minority language francophone communities. Stripped of its cornerstone value of linguistic duality, this radical transformation would have profound effects on the interpretation of constitutional language rights of all Canadians living in minority situations.
As parliamentarians consider Bill C-13, we urge them to reflect on the admonition of Quebec Superior Court Justice Marc-André Blanchard. In his April 2021 ruling on Bill 21, he decried the Quebec legislature’s “indifference” to basic rights and freedoms and warned of the dangers of such a broad use of the notwithstanding clause.
The minority Liberal government has signalled it wants to have Bill C-13 adopted by the House of Commons before the holidays. A short window of opportunity remains to ensure elected representatives fully grasp the implications and the long-term damage these changes would inflict not only on English-speaking Quebecers, but on all Canadians.
Parliament should not entrench this problematic pattern of behaviour in Quebec. The pre-emptive use of the override is an affront to liberal democracy. It must be strongly condemned by all who seek to ensure that all be treated with respect and dignity.
This rewrite of the Official Languages Act is historic and must be undertaken with the greatest of care and diligence. Our parliamentarians have an opportunity to demonstrate they stand firmly behind fundamental rights and freedoms for all Canadians.
The Quebec Community Groups Network is leading a campaign to oppose changes to the Official Languages Act that do not reflect our vision of Canada. As an organization and as a community, we are deeply committed to the protection and promotion of French. But, unlike many proponents of the new Charter of the French Language and Bill C-13, we are convinced that this is not a zero-sum game. We remain committed to working with parliamentarians to safeguard the language rights of Canadians, both English and French.
In this spirit we urge parliamentarians to remove all references to the Charter of the French Language from Bill C-13 and not to throw our minority linguistic community overboard.
Eva Ludvig is president of the Quebec Community Groups Network.
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