Robert Leckey: How The Notwithstanding Clause is Used

Since Bill 21 became a law in the summer of 2019 – some public servants wearing a religious symbol, including but not limited to the hijab, niqab, kippa, and turban are barred from working in a government job.

Law 21 is not the first of its kind, as Bill 62, which banned those with face coverings from delivering or receiving public services, was put into effect in 2017 by the former provincial Liberal government. This law was suspended twice as a result of being in violation of the Quebec and Canadian charters. The former government did not decide to appeal this judgement and did not invoke the notwithstanding clause to push for Bill 62.

Premier François Legault and some supporters of Bill 21 aim to identify that this bill doesn’t intend to single out specific religions, but is the next step in modernizing the province, efforts that have been in place since the 1960s.

Law 21 is not the first of its kind, as Bill 62, which banned those with face coverings from delivering or receiving public services, was put into effect in 2017 by the former provincial Liberal government. This law was suspended twice as a result of being in violation of the Quebec and Canadian charters. The former government did not decide to appeal this judgement and did not invoke the notwithstanding clause to push for Bill 62.

So to what extent can the NWSC be used? While Law 21 only applies to government jobs, if the Quebec government wishes to, they can use the NWSC to apply Law 21 to private businesses. 

McGill Law Dean Robert Leckey discusses the notwithstanding clause, how it was made to allow for provinces to be able to challenge the charter, cases that have used the notwithstanding clause before, and what Law 21 could mean for future cases.

This interview is a part of episode 4 of Local 514, to watch the full episode click here.