CAQ abuse of notwithstanding clause concerning: Quebec Bar Association

The professional order of Quebec lawyers, Barreau du Québec (the Bar), is concerned about the “increasingly frequent” invocation of the notwithstanding clause to exempt laws that violate certain fundamental rights from judicial review.

In its brief on Bill 9, the Act to strengthen secularism, the Bar warns against the risk of “social discord” and “increased polarization” in Quebec.

Bill 9, which is being spearheaded by the Minister responsible for Secularism Jean-François Roberge, aims in particular to extend religious neutrality obligations to new sectors, such as daycare centers.

It would require faces to be uncovered in CEGEPs and universities, eliminate public funding for religious schools, and ban street prayers, which Roberge says can be “acts of provocation.”

Section 14 of Bill 9 states that the law “has effect notwithstanding sections 2 and 7 to 15 of the Canadian Charter,” which includes freedom of religion and expression, legal guarantees, and the right to equality, the Bar points out.

This once again raises “fundamental questions” about “the protection of the public and the preservation of the rule of law,” it writes in its brief to be presented Tuesday to a parliamentary committee.

The Bar points out that since coming to power in 2018, the Coalition Avenir Québec (CAQ) government has used the notwithstanding clause in its Bills 21 (secularism) and 96 (French language).

The CAQ also prohibits citizens in its Bill 1 (constitution) from challenging any rule of law that would be covered by a “parliamentary sovereignty provision.”

However, “democratic principles, the independence of institutions, equality before the law, and the recognition of the right to legal dissent are the pillars of our legal system,” the Bar says.

“This is a precious heritage that we have a duty to protect and preserve. When legislative initiatives compromise these foundations, it is imperative to denounce them.”

The Bar proposes to “regulate” the use of the notwithstanding clause, since, it points out, it is an exceptional mechanism that has long been rarely used. The adoption of a “framework law” could thus be considered.

“Why would a government suspend fundamental rights that it otherwise proclaims in its own fundamental laws without even allowing them to be reviewed by the courts?” asks the Bar.

The Barreau du Québec is the professional order governing the practice of 32,000 lawyers. Its mission is to protect the public, contribute to accessible, high-quality justice, and defend the rule of law.

On Tuesday, the organization will also denounce a “major contradiction”: Bill 9, for example, includes a derogation provision that targets the Quebec Charter of Rights and Freedoms.

–This report by La Presse Canadienne was translated by CityNews