UN should be next stop if Supreme Court won't rein in Quebec's use of notwithstanding: lawyer

Montreal Gazette

2 days ago

Quebec Politics
By
A prominent human-rights lawyer says the anglophone community should take its case to the United Nations if the Supreme Court of Canada does not step in and curtail Quebec's use of the notwithstanding clause in Bill 96 and other laws.
Pearl Eliadis said a complaint could be filed with the United Nations Human Rights Committee, which oversees compliance with the International Covenant on Civil and Political Rights. Canada ratified the ICCPR in 1976 and is bound by its provisions.
'Governments in Canada, on the whole, have paid attention to decisions and views from the Human Rights Committee because we are part of an international order,' Eliadis said Wednesday at a public forum about the Constitution's notwithstanding clause.
The step should be taken if Canada's top court decides that the province's use of the clause cannot be overturned because the court's hands are tied, said Eliadis, who teaches at McGill University's faculty of law.
By triggering the clause, governments can override some fundamental rights enshrined in the Canadian Charter of Rights and Freedoms. After five years, the override expires unless the government renews the use of the clause.
Premier François Legault's Coalition Avenir Québec government preemptively invoked the clause to shield Bill 21, a law that bans the wearing of hijabs and other religious symbols by government workers, and Bill 96, which toughened the Charter of the French Language, commonly known as Bill 101.
Eliadis is a vocal critic of both laws.
'The international framework for human rights is very clear,' Eliadis said. 'Even in the event of a public emergency, the only thing you cannot derogate from are the equality and non-discrimination rights — and those are precisely the ones that are being violated by laws like Bill 96, Bill 21 and others.'
She added: 'I think we need to be paying attention to the international context, understanding that Canada holds itself out as a leader internationally, as a country that cares about international law.'
The public forum was organized by the Task Force on Linguistic Policy. The group says it has raised $200,000 from the public to finance its constitutional challenge to Bill 96, which had a wide-ranging impact, including on CEGEP enrolment, business operations, the court system, and access to government services in English.
When the Constitution was patriated in 1982, the notwithstanding clause was included at the insistence of provincial premiers concerned the charter would put too much power in the hands of judges.
'This was a political deal that expressly was intended to tie the hands of the courts,' Eliadis said.
The Supreme Court has previously ruled that it is not its role to require legislators to justify their invocation of the clause.
Eliadis said the top court has essentially held that the clause is a 'magical incantation, you wave this around, you hit Ctrl-Alt-Delete and sections of the Charter — freedom of expression, the right to freedom of religion, the right to peaceful assembly, the right to freedom of association (and other freedoms) — all disappear.'
In January, the Supreme Court agreed to hear a challenge to Bill 21.
That followed a 2024 Quebec Court of Appeal ruling upholding the law. The court rejected challenges from several groups, including the English Montreal School Board, the Fédération autonome de l'enseignement teachers' union and the National Council of Canadian Muslims.
During a panel discussion following Eliadis's address, Eric Maldoff, a lawyer and former president of the anglophone rights group Alliance Quebec, said the notwithstanding clause was supposed to be used in exceptional circumstances.
Instead, provinces, including Quebec, have tried to 'normalize' its use, he said.
'We've got a rule of law problem here, and the notwithstanding clause in itself is an affront to the rule of law,' Maldoff said. 'It's the government being able to say with the stroke of a pen: your rights don't exist, we can do whatever we want.'
Maldoff said those challenging the clause must persuade 'a courageous court that the clause's preemptive use is inappropriate.'
Failing that, courts should be urged to declare that they will consider cases where the clause has been invoked, 'with a view to making a declaration on what rights have been abrogated and in what way.'
This would ensure that 'when it comes up for renewal, we're not going to have a debate about whether it affects rights. That will already be established.'
Joe Ortona, a lawyer who is chair of the EMSB, said the board has a duty to fight Bill 21.
The law is 'contrary to all of our values of tolerance, of acceptance, of multiculturalism, and just basic decency, of treating people with dignity and respect, and was not at all the kind of example that we wanted to set for our children,' he said.
'It's a law that we fundamentally oppose, not only on moral grounds, but on constitutional grounds.'
The EMSB is fighting the law based on two sections of the charter that cannot be overridden by the notwithstanding clause. One pertains to minority language educational rights, the other to gender equality.