Despite court questions, Quebec is likely to use the notwithstanding clause again for a new language rule.




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Premier François Legault said Thursday that the Quebec government would “possibly” use the notwithstanding clause to shield its language law changes from charter challenges.

His remarks come only days after the Quebec Superior Court slammed the government’s use of a provision in the Laicity Act, a 2019 law that prohibits many civil servants from wearing religious symbols at work.

Section 33 of the Charter of Rights and Freedoms contains a notwithstanding provision that enables provincial governments to circumvent some of the charter’s fundamental freedoms.

Since its inception in 1982, it has only been used on rare occasions, and it is typically only used in response to a court ruling.

From 1982 to 1985, the Parti Québécois was in power and contained the provision in any law passed by the National Assembly. However, it was just a symbolic gesture, with no intention of actually overriding rights.

But, as soon as the Laicity Act, also known as Bill 21, was passed in 2019, Legault invoked the provision, attempting to prevent courts from deciding if it violated fundamental charter rights.

Justice Marc-André Blanchard ruled on Tuesday that, although the legislation did infringe on minority groups’ religious freedoms, it couldn’t be overturned because of Section 33.

Nonetheless, Blanchard called Quebec’s blanket application of the clause “troubling,” “excessive,” and “cavalier,” adding that whole parts of the charter were suspended that had little to do with secularism.