The clause exists for a reason
Some people are once again having the vapours over the notwithstanding clause, written straight into a Quebec bill barring teachers and other state employees in positions of authority from wearing religious symbols.
I’m hugely in favour of public secularism. When it comes to the official “face” of the government via the human being who’s in charge of renewing my driver’s licence, I don’t want it to show religious belief. The state has no religion in this country — the Constitution recognizes the primacy of God but in the very same sentence it also recognizes the primacy of the rule of law. Everyone gets treated the same no matter their beliefs. That’s good, proper, and democratically healthy.
If you wish to work for the government as its public face, you should know that in that role you shall treat everyone equally which includes not wearing signs that might be considered hostile, judgmental or threatening by some people, no matter how unreasonable you, personally, think it is to be offended by a hijab. If you can’t stand the thought of tucking your Jesus-on-a-cross inside your clothing while you’re at work representing the state to its citizens, then kindly find a different place to work.
(That said, I think we should have more flexibility when it comes to teachers because their authority has virtually no coercive power.)
The Quebec government knows people are bound to disagree, kick and scream, and also fight the bill in court, using the Charter that guarantees everyone’s freedom of religion. It can pre-empt those court battles by invoking the Charter’s notwithstanding clause, saying “we don’t care what the Charter says, this bill shall apply notwithstanding section 2”. That’s an entirely legal and proper thing to do for the Quebec government. The Constitution contains a notwithstanding clause for a reason (it was a condition to get the deal sealed back in the early 1980s; no notwithstanding clause, no Charter), and the fact that it’s there means governments are free to use it. Besides, the government of the Parti Quebecois used it on every bill in the early 1980s, as a form of protest against the 1982 Constitution, and who can honestly say the country today is any worse for it?
Here’s another thing: The 1982 Constitution is almost literally impossible to amend, which shouldn’t be acceptable to us in a democracy. The notwithstanding clause is the only bit of legislative wiggle room available to democratically-elected governments. It is most necessary because otherwise our Constitution wouldn’t be able to breathe and we all know what happens when breathing is impossible.
Is there a cost to using the notwithstanding clause? Yes. A big political cost. It’s a gamble politicians take, and they may stand or fall on their decision. But there is also a cost to not passing a bill a majority of your voters say they want because you worry about a Charter challenge. Is a majority of Quebec voters in favour of public secularism? We’re about to find out.
Using the notwithstanding clause is also temporary; it expires after five years. If a government wants to keep it going it has to go through the whole process again to renew it. This new bill can also be amended or scrapped — by the same government or a subsequent one.
That’s how democracy works. It shouldn’t give us the vapours.