Quebec likely to use notwithstanding clause again for new language law, despite concerns by court

The Quebec government will "probably" use the notwithstanding clause to protect its language law reforms from charter challenges, Premier François Legault said Thursday.

His comments come just days after the Quebec Superior Court severely criticized the government for how it used the clause in the Laicity Act, the 2019 law that bans many civil servants from wearing religious symbols at work.

The notwithstanding clause, Section 33 of the Charter of Rights and Freedoms, allows provincial governments to override certain basic freedoms guaranteed by the charter.

It has only been used sparingly since it was introduced in 1982, and usually only invoked following a court decision.

While the Parti Québécois was in government from 1982 to 1985, it included the clause in every law passed at the National Assembly. But it was a symbolic act and not designed to actually override rights.

But Legault invoked the clause as soon the Laicity Act, also known as Bill 21, was passed in 2019, trying to block courts from weighing in on whether it violated basic charter rights at all.

In a decision handed down Tuesday, Justice Marc-André Blanchard said that while the law did indeed violate the religious freedoms of minority groups, it couldn't be struck down on those grounds because of Section 33.

Blanchard nevertheless described Quebec's blanket use of the clause as "troubling," "excessive" and "cavalier," noting whole sections of the charter that have nothing to do with secularism were suspended.

Legault undeterred

Legault appears undeterred by the court's concerns. His government is preparing to table legislation shortly to strengthen the Charter of the French Language — commonly referred to as Bill 101.

"We will probably use the notwithstanding clause," he said at a news conference in Quebec City.

"With the judgment we have this week about Bill 21, it's clear that the [court's] interpretation of the Canadian Constitution — that we didn't sign — sometimes gives us answers that don't represent what the majority of Quebecers want."

Legault also criticized the leader of the Quebec Liberals, Dominique Anglade, for saying that, as premier, she would let the notwithstanding clause in Bill 21 expire in 2024 and would not renew it.

"We think the law has to go before the courts," Anglade said earlier on Thursday. In response, Legault said she had failed to defend the values of the majority.

Bill 101 and the notwithstanding clause

Justice Minister Simon Jolin-Barrette has been tasked to draft the language law reforms. He also drafted Bill 21.

Quebec's original language law, Bill 101, adopted by the Parti Québécois government in 1977, was also subject to a controversial use of the notwithstanding clause about a decade after it became law.

In 1988, the Supreme Court ruled the law's provisions that banned the use of English on commercial signs violated charter rights to freedom of expression.

The Liberal premier at the time, Robert Bourassa, invoked the notwithstanding clause in response to the decision. Voters in the largely anglophone ridings rebelled against the Liberals for doing so, electing four MNAs from a protest party in the 1989 election.

In the 1990s, Bill 101 was revised to state that while English can be included on commercial signs, French must be more prominent.