Time for Canada to remove the Not Withstanding Clause from the Canadian constitution

Canada has yet to bring Quebec into the constitutional fold with dignity following the "night of the long knives" in November 1981, and the failures of Meech Lake and Charlottetown in 1987 and 1992, respectively. The cause of national unity certainly commends a righting of this historical wrong, and with the introduction of Quebec's Bill 96 language law seeking to amend the Canadian Constitution, we now have a golden opportunity to correct not one, but two constitutional mistakes at once.

We can achieve the constitutional enshrinement of Quebec's desire for French unilingual status and its claim to "nation" status. And we can simultaneously rid the Canadian Charter of Rights and Freedoms of Section 33, the infamous and abhorrent notwithstanding clause, which the Quebec government has invoked in Bill 96 to insulate it from the inevitable constitutional challenges that will ensue.

The opportunity to undertake this grand exercise in constitutional redemption arises because at least one aspect of Bill 96, namely the amendment of the Constitution making French Quebec's only official language, requires the consent of the House of Commons and the Senate.

There are constitutional scholars, such as University of Ottawa's Benoit Pelletier, who argue that Quebec can make these constitutional amendments unilaterally, because they ostensibly affect only Quebec and no other parts of Canada.

Others, however, such as Osgoode Hall Law School's Bruce Ryder, are adamant that the Constitution explicitly provides that changes to the status of French and English in Quebec would require the agreement of both the Quebec National Assembly and Parliament pursuant to the rules found in Section 43 of the Constitution. Still others insist that the language amendment would require the support not merely of Parliament, but also of seven provinces representing at least 50 per cent of the national population.

As Ryder recently told the Globe and Mail, "it would not be just a symbolic gesture. English and French language rights are of concern to the nation as a whole."

What this amounts to is that unless Pelletier's interpretation of the law prevails if Bill 96 is challenged before the Supreme Court of Canada, Quebec's constitutional amendment is dead in the water without some genuine compromise on the part of Quebec, Canada and, quite possibly, six other provinces.

Bill 96 is the second time that Premier François Legault and his government have invoked the notwithstanding clause. In 2019, it passed Bill 21, "An Act Respecting the Laicity of the State," which is intended to eradicate religious symbols in most of the public sector.

In Bill 96, Quebec now seeks to add clauses to the Canadian Constitution, saying Quebec is a nation and that its official and common language is French. The bill also makes significant changes to the application of its French language law (Bill 101) and to language, workplace and education policy broadly. To safeguard the legislation from a judicial battle over whether it impairs, among other things, freedom of expression, religious freedom and equality rights, the Quebec government has resorted to Section 33 of the Charter.

Canada's democracy has always been considered resilient and well immunized against the perils of the kinds of democratic backsliding seen in other liberal democracies throughout the world. Yet Section 33 of the Charter is one feature of Canada's Constitution that undermines this rather smug assessment, permitting Parliament and the legislatures to provisionally suspend the operation of essential Charter rights and freedoms.

Any willingness by our leaders to invoke the notwithstanding clause is cause for concern in a liberal constitutional democracy.

Although reliance on Section 33 does not offend the rule of law, it nevertheless poisons the liberal democratic well from which free citizens draw their water. It undermines the elegant and meticulously crafted accountability regime set out in Section 1 of the Charter that regulates the limitation, by Parliament and the provinces, of the very rights and freedoms that, but for Section 33, are protected and indeed guaranteed.

In other words, the Constitution already provides a mechanism whereby rights and freedoms may be restricted in circumstances in which governments can demonstrably justify the restrictions in a manner consistent with the overarching respect for freedom and democracy. In a genuinely free and democratic society, we don't require and should not tolerate the use or existence of Section 33, which requires no demonstrable justification by the governments invoking its application.

The notwithstanding clause ought to be repealed.

And it is Canada's current prime minister – the son of the very prime minister who, in 1981, grudgingly accepted the inclusion of Section 33 in the Charter as the price of provincial consent to the entire patriation package – who ought to put the proposal on the table as a condition of Canada's agreement to the constitutional amendments sought in Bill 96.

To date, however, Justin Trudeau has engaged in recklessly uncritical cheerleading for the Quebec law.

In speaking for Canada, the prime minister ought to call on Premier Legault to amend Bill 96 by revoking its stipulated reliance on the notwithstanding clause, and insist that any part of Bill 96 that cannot pass muster under the Section 1 test in any future court challenge should be modified accordingly or jettisoned altogether.

This, and Quebec's agreement to support a repeal of Section 33 altogether, should be the price of Canada's otherwise good faith support for Bill 96.

This need not undermine or frustrate Quebec's broad legislative project in the service of its national, cultural, and linguistic aspirations. Some legal experts, including Benoit Pelletier, argue that none of the specific measures in the law would require the protection of Section 33 in order to survive a constitutional challenge. But even if the Supreme Court does strike down part of the law under Section 1, there is every reason to believe that little more than modest tweaking would be necessary to bring the law into constitutional good standing without doing violence to the broad purpose of the initiative. Particularly if Canada gets behind an amended Bill 96 predicated on a consensus that the linguistic and nation-status provisions are of existential significance to Quebec's cultural identity and aspirations.

Next, the Prime Minister should develop a two-pronged strategy aimed at generating broad popular consensus across Canada for the plan. A strategy that could lead to a national consultative referendum on the Section 33 repeal, and a concurrent strategy to win the support of the premiers, culminating in a constitutional conference of first ministers on the entire amendment package.

Yes, Quebec, and no doubt some other provinces, will object to the proposal to repeal Section 33; but the Government of Canada has some bargaining power on this one. With or without the other provinces, Canada can oppose Quebec's effort to unilaterally amend the Constitution.

Repealing Section 33 would, of course, require the agreement of two-thirds of the provinces representing at least 50 per cent of the national population. And after Charlottetown, that may have to be preceded by a consultative referendum before the amendments are put to the provincial legislatures. But this is the stuff of nation-building!

And so, Prime Minister Trudeau can signal broad support for Quebec's national and linguistic aspirations, while simultaneously initiating the amendment process with respect to Section 33 as part of an effort to renew and strengthen the federation.

Quebec needs to join the constitutional family with dignity – i.e., on its own terms. But, as the prime minister ought to argue, those terms needn't ever be contingent on resort to a constitutional device that would deprive its own citizens of the protections afforded by the Charter and, thereby, making of Quebec an illiberal democracy within Canada.

Sadly, by rushing to signal his support for Bill 96 in its present form and without conditions or qualifications, the prime minister has already placed his party's upcoming electoral fortunes in Quebec in conflict with Canada's national interests. It's not too late to reverse course, and he can have it both ways if he has the courage and resolve to lead a national effort to strengthen, rather than to betray, our liberal constitutional democracy.

• Peter L. Biro · for CBC News Opinion · Posted: Jun 03, 2021 4:00 AM ET | Last Updated: June 3
• This column is part of CBC's Opinion section.