Last September, the federal government presented its arguments to the Supreme Court to challenge Quebec’s Act Respecting the Laicity of the State. This law forbids some public sector workers from wearing religious symbols while on the job. More specifically, the federal government asked the Court to clarify the scope and constitutional limits of the notwithstanding clause. But what exactly is that clause?
Courts have judicial powers that allow them to overview and limit government actions. They make sure that the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms are respected. However, this power is not without limits. The scope of Charter rights can be limited.
The notwithstanding clause
The notwithstanding clause comes from the Canadian Charter of Rights and Freedoms. This means it is part of the Constitution of Canada. This clause can be found in section 33 of the Canadian Charter. It allows the federal and provincial governments to pass a law that limits a Charter right or freedom for a maximum of 5 years. This period can be renewed.
However, this clause can’t be applied to some rights, like voting rights and linguistic rights.
|
The Oakes Test: another way to limit rights and freedoms This two-step test helps decide whether a law that limits a right can be “justified” in a democratic society. For that to be the case, the goal of the law has to be real, urgent, and important. Also, there must be a balance. The right must be limited as little as possible and the benefits must outweigh the negative effects. In short, the more harmful a measure is, the more important its goal must be for it to be justified. |
The story behind the clause
The notwithstanding clause traces its roots back to the patriation of the Constitution in 1982. When negotiating the Constitution, the provinces worried that creating a federal charter might give too much power to the courts and might limit the provincial governments’ power. The provinces finally agreed to create a federal charter, on one condition: the charter must include a clause that lets them override some rights and maintain their parliamentary sovereignty.
Quebec, however, was not involved in the discussion. The Constitution and the Canadian Charter were passed without Quebec’s approval. The event is known as the “Night of the Long Knives”, because the French-speaking province was excluded from the final talks.
It’s worth noting that Quebec’s Charter of Human Rights and Freedoms has a similar notwithstanding clause, also known as the override clause.