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Prime Minister Justin Trudeau participates in a year end interview in Ottawa, on Dec. 16, 2021.Justin Tang/The Canadian Press

The political compromise that enabled Pierre Trudeau to enshrine his Charter of Rights and Freedoms in the Constitution is being reappraised in the face of Quebec’s move to invoke the notwithstanding clause to shield its religious symbols ban from being struck down in court.

Many Canadians seem outraged that Premier François Legault’s government was able to pre-emptively apply the notwithstanding clause, contained in Section 33 of the Charter, to Bill 21 – the 2019 law that prohibits public employees in a position of authority from wearing religious symbols. The ban also applies to public-school teachers, leading to the recent reassignment to a non-classroom job of a Grade 3 instructor who refused to remove her hijab.

There have been calls to scrap the notwithstanding clause altogether, or, failing that, for provincial legislatures and Parliament to undertake never to invoke it. After all, what good is a Charter that protects fundamental rights if governments can override them as they see fit?

Ford to invoke notwithstanding clause to override Superior Court ruling on election advertising

In Legault’s Quebec, the use of the notwithstanding clause is an act of affirmation

The answer to that question is that the Charter would likely not have been adopted in 1982 had Mr. Trudeau not agreed to include the notwithstanding clause demanded by the Western premiers. The override clause was seen as a way of protecting the supremacy of elected legislatures over the courts, a defining feature of the Westminster system of government.

Its inclusion in the Charter, which clinched the 1981 federal-provincial deal that paved the way for the patriation of the British North America Act from Britain, was the result of last-minute negotiations between then federal justice minister Jean Chrétien and the attorneys-general of Ontario and Saskatchewan, Roy McMurtry and Roy Romanow. Those negotiations have become the stuff of constitutional legend. The three hashed out the deal late at night in the fifth-floor kitchen of what was then the Government Conference Centre in Ottawa. All the provinces – except Quebec – signed on the next day. The country still lives with the consequences of Quebec’s opposition.

But the notwithstanding clause was not regarded as an innovation. By that point, the 1960 Bill of Rights – adopted under former prime minister John Diefenbaker – had already included a similar override clause, as had the human rights codes of several provinces. The Globe and Mail described it then as a “peculiarly Canadian” approach that had been used to ensure elected legislatures retained the final say.

“I must be honest and say that I don’t fear the notwithstanding clause very much,” Pierre Trudeau told broadcaster Jack Webster in 1981. “It can be abused as anything can, but the history of the Canadian Bill of Rights Diefenbaker had adopted in 1960, it has a notwithstanding clause, and it hasn’t caused any great scandal. So, I don’t think the notwithstanding clause deters very significantly from the excellence of the Charter.”

Mr. Trudeau’s own government had decided to override the Bill of Rights when it invoked the War Measures Act in 1970 to deprive suspected Front de libération du Québec members and sympathizers of their basic rights – though most Canadians approved of the move at the time.

In his 2007 memoir, Mr. Chrétien wrote that his former boss accused him in 1992 of “weakening” the Charter with the notwithstanding clause. “You gave them that,” Mr. Chrétien recounted Mr. Trudeau telling him then, to which he responded: “Sorry, Pierre. I recommended it. You gave it.”

The Quebec government, under Robert Bourassa’s Liberals, had invoked the notwithstanding clause in 1988 to reinstate the province’s French-only commercial sign law, which had been struck down earlier that year by the Supreme Court of Canada. In 1993, Mr. Bourassa’s government decided not to reinvoke the clause (which must be renewed every five years) and softened its language law to allow for other languages on commercial signs, provided French remained predominant.

In defence of his government’s decision to invoke the notwithstanding clause to shield Bill 21 from a constitutional challenge, Simon Jolin-Barrette – the Quebec minister responsible for the legislation – insisted that “it falls to parliament and not the courts to decide on a choice as fundamental for the organization of society” as the province’s secularism law. But the pre-emptive use of the constitutional override – which Mr. Legault’s government has also used in Bill 96, the pending legislation that aims to strengthen protections for the French language – forces the debate over the clause to a new level altogether.

In a year-end interview with The Canadian Press, Prime Minister Justin Trudeau said that his father’s hopes that the political costs of invoking the notwithstanding clause would discourage any government from using it have not materialized. Quebec’s actions, and those of Ontario Premier Doug Ford, whose government invoked the clause to impose restrictions on third-party election advertising, have him considering asking the Supreme Court to weigh in on the pre-emptive use of the notwithstanding clause.

Short of abolishing Section 33 – a political impossibility, for now – this would advance the work his father set out to do.

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