L. Ian MacDonald

 

For Peter Lougheed and Allan Blakeney, the notwithstanding clause was the dealmaker in the patriation round of federal-provincial talks that resulted in the Constitution Act of 1982.

Lougheed regarded the notwithstanding clause as the capstone of his career, his historic reply to the acquisitive designs of Prime Minister Pierre Trudeau in the National Energy Program.

For Lougheed, as premier of Alberta, the NEP was not only Trudeau’s way of occupying his front porch on energy, but of taking over his living room.

When it came to Ottawa and the constitutional round of 1981, Lougheed knew what his price was and he brought along Saskatchewan’s Blakeney, who had the same issues with Trudeau.

The concept was quite simple—a notwithstanding clause that, when invoked, would override the Charter of Rights and Freedoms for a five-year period. And the Supreme Court would stand behind it.

The notwithstanding clause was agreed to in Ottawa in November 1981 by all premiers and provinces but one—René Lévesque and Québec. And Lévesque, still smarting from his referendum defeat of 1980, wouldn’t have signed it under any circumstances.

And so was born the Charter of Rights, in the Constitution Act of 1982, with the notwithstanding clause. For his part, Trudeau never invoked it. For that matter, Ottawa never has.

Lougheed invoked it once to end a strike in Alberta. Other provinces, including Quebec under Robert Bourassa in 1988 on the issue of language on commercial signs, have also done so. But on the whole, it is the rare premier and province that has stooped to using the notwithstanding clause.

Along comes François Legault, with his new Bill 21, telling people how to dress in public. And he’s backed up by the notwithstanding clause.

Legault has grandfathered the provisions of the bill covering the wearing by public servants of turbans, scarves and hijabs so that current employees are not affected, but anyone hired after the bill’s passage will be. This applies to teachers and cops, among others, in uniform.

“We’ve made compromises and what I want is for a serene debate,” said the premier in unveiling his bill on Thursday. “…what I want to do in the next few weeks is to unite as many Quebecers as possible.”

The issue is now called secularization, but it began more than a decade ago over a debate on “reasonable accommodation”, mostly involving the response of small towns to newcomers wearing non-western wardrobes.

And so it is today—most of the support for restrictive dress codes is in small-town Quebec, while most of the resistance, as it has since Thursday, originates in the cosmopolitan centre of Montreal. 

Legault wants to have Bill 21 on the books by the end of the current sitting of the National Assembly in June. And his Coalition Avenir Québec government, with the support of all parties, has already passed a motion to remove the crucifix over the speaker’s chair in the blue chamber, where it’s been since Maurice Duplessis put it there in 1938. (For those of us who’ve covered the legislature in the last half century, the crucifix was part of the scenery of the Blue Room of the National Assembly.)

While community and professional leaders in Montreal were predictably divided over Bill 21, federal leaders were understandably unequivocal in their critiques, especially on the eve of an election campaign.

Prime Minister Justin Trudeau said it was normal as a Quebecer “to have serious questions about this bill in a free and just society,” an interesting echo of his father’s “just society” rhetorical and policy trademark.

Conservative Leader Andrew Scheer offered a similar sense of an open society.

NDP Leader Jagmeet Singh, who proudly campaigns in a turban, allowed as to how he was made to feel uncomfortable in his youth. 

There will be no shortage of reasons to criticize the federal leaders in the coming months, but the controversy over Bill 21 in Quebec won’t be one of them.

 

L. Ian MacDonald is Editor of Policy Magazine.