The Quebec government recently became the second provincial government in recent years to invoke the notwithstanding clause to override the Canadian Charter of Rights and Freedoms, using it to pass the controversial Bill 21, which will prevent certain public servants from wearing religious symbols.
The notwithstanding clause—a feature of the Constitution of Canada—provides the legal basis on which a provincial government can “put aside” a determination by the courts that the legislation is unconstitutional.
Although the clause is intended for use in only the most dire of situations, it has been invoked by both the Premiers of Ontario and Quebec.
Francois Legault, the Premier of Quebec, announced that he is invoking the notwithstanding clause to ensure that his province retains a strict division between religion and politics and public services.
This, of course, includes a curious exception of the Christian crucifix, which will be allowed to hang in the Quebec National Assembly.
Legault declared in a three-minute video released on his social media that this legislation does not prevent people from practicing their religion of choice, but they must abide by a specific set of rules. Legault said, “Secularism is not contrary to freedom of religion.”
Religious symbols may include, but are not limited to, the Muslim hijab, Christian cross, or Jewish kippah.
Legault claims that this ban on religious wear is to protect the larger francophone identity, but at what point is Legault crossing the line between protecting the politics of his province and ignoring the Charter of Rights and Freedoms to serve this set of motives?
Many people have come to the realization that the proposed legislation will certainly violate the basic right to freedom of conscience and freedom of religion. If the government is given the authority to take away this agency, what else might they feel they have the right to remove?
Despite the ban on the wearing of religious garments by those in administrative positions, what most people seem to be forgetting is that the government’s use of the notwithstanding clause will not affect private life. The aim of the legislation is to secure a secular government, not to repress the personal lives of the public.
So, in this situation, are there morally permissible grounds for the political legislature to insist that representatives of the political executive be secularized to reflect the division between church and state? This is not a difficult question to answer.
Of course, the Church should be separate from the state. Nevertheless, I recognize the importance of independent values and beliefs, as they pave the way for great discussion on the future of provincial and federal governance.
The notion that secularism must be clinical, and that it should strip the individual of their faith, speaks to an interpretation of secularism that is highly sterile and dichotomous. In many countries, Quebec’s current state included, public officials freely wear their crosses, hijabs, turbans, yamakas, and other religious garments and symbols with no ill effect.
This point raises another debate over whether the secular state can exist in an environment in which people are not denuded of their most basic forms of self-identification.
I question the potential invocation of the notwithstanding clause in Quebec in the name of populism. The freedoms enshrined in the Canadian Charter—whether we agree with them or not—are constitutional realities. As such, an action to trump them should not be taken or considered lightly.
