By Canadian Press

Canadian Bar Association calls on Quebec to drop notwithstanding clause from Bill 21

Apr 6, 2019 | 10:38 AM

MONTREAL — Quebec’s decision to draft a bill that affects the rights of religious minorities but limits their ability to challenge the legislation suggests the Canadian court system is useless or illegitimate, the Canadian Bar Association said Thursday.

The lawyers’ association called on the province to remove the pre-emptive use of the notwithstanding clause from Bill 21 and let the courts do their job. “If the government is convinced its law is constitutional, then it should let the court process run its course,” Audrey Boctor, president of the association’s Quebec branch, said in an interview.

Bill 21, introduced last Thursday, would prohibit public sector workers deemed to be in positions of authority, including school teachers and police officers, from wearing religious symbols on the job. The inclusion of the notwithstanding clause blocks citizens from challenging the bill over violations of fundamental rights protected by the federal and provincial charters.

Premier Francois Legault has said the bill is “moderate” and “a compromise.” He has argued his government invoked the clause to avoid legal challenges that would cause lengthy delays in the law’s implementation. Boctor said that contention is “illusory,” because lawyers will find creative ways to take the provincial government to court over the legislation.

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Bill 21 “was introduced last week, and already we’ve seen constitutional experts come out and suggest avenues for challenge,” she said. By invoking the notwithstanding clause the government is depriving citizens of the ability to make an enlightened decision about legislation that limits the rights of religious minorities, such as Muslims and Jews.

But Legault rejects the notion Quebecers need more information to make an informed decision on Bill 21. Aside from the notwithstanding clause, his government is planning on limiting debate in the legislature to ensure the bill’s quick adoption.

During question period Thursday, Legault cited the hundreds of hours of official debate and public consultations that have occurred across the province since 2007 on the issue of state secularism. “Is that not enough?” he asked in response to a question from the official Opposition.

Interim Liberal leader Pierre Arcand said Legault’s government is incapable of giving details as to how the legislation would be enforced. “If he wants to limit our rights, he should have the courage to say how he’ll do it,” Arcand said in the legislature.

A spokesman for Bill 21’s sponsor, Immigration, Diversity and Inclusiveness Minister Simon Jolin-Barrette, was not immediately available for comment on the bar association’s statement.

The Canadian Bar Association is a voluntary organization that represents members of the Canadian legal profession, including judges, prosecutors and notaries. The Quebec bar society, membership of which is mandatory for practising law in the province, said Thursday it is studying the bill and has not taken a position on it.

Giuseppe Valiante, The Canadian Press