Québec solidaire (QS) is following in the footsteps of the Barreau du Québec and proposing to regulate the use of the notwithstanding clause.
QS MNA Haroun Bouazzi is expected to table a bill to this effect on Thursday. The notwithstanding clause removes laws that contravene fundamental rights from judicial review.
Since coming to power in 2018, the CAQ government has invoked this provision on several occasions, notably to shield its Bill 21 (secularism) and Bill 96 (French language).
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In an interview, Bouazzi expressed serious concern about the increasingly frequent use of the notwithstanding clause in Quebec and elsewhere.
“We are seeing authoritarian tendencies becoming more pronounced almost everywhere,” he said. “The argument that there are no limits to the use of the notwithstanding clause is terribly dangerous for a democracy.”
He proposes limiting the use of the notwithstanding provision to situations where there is a “serious threat to the population” or to protect the French language and Indigenous languages.
The MNA for Maurice-Richard also wants to “promote democratic dialogue” with civil society.
Finally, he proposes that, in order to invoke the notwithstanding, a decision-making threshold of more than 50 per cent be required, i.e. a two-thirds majority vote in the House and the support of two parliamentary groups.
Finally, he proposes that, in order to invoke the exemption, a decision-making threshold of more than 50 per cent should be required, that is to say, a two-thirds majority in the House and the support of two parliamentary groups.
“We are responding to a demand from civil society. The Quebec Bar Association has made a request along these lines. So have the League of Rights and Freedoms and the Quebec Federation of Women,” he argues.
“So, we are responding to these concerns that we share with civil society. (…) We ourselves, as legislators, must set limits on this totally disproportionate power.”
Last February, the bar association sounded the alarm, emphasising that “equality before the law and the recognition of the right to legal dissent are the pillars of our legal system”.
It proposed regulating the use of the notwithstanding clause, an “exceptional mechanism”. Its proposal had been given a cool reception by the Coalition Avenir Québec.
Moreover, in her opening speech on Tuesday, Premier Christine Fréchette expressed concern at hearing groups voice such criticisms.
Quoting Robert Bourassa, she stated that the notwithstanding clause “gives us the legal certainty we need to implement a programme that reflects the will of the majority of Quebecers”.
“When I hear political parties or civil society groups criticising the use of these clauses, it worries me, because it is the most important democratic tool for our nation,” she said.
“Thanks to this tool, we can assert loud and clear who we are,” added the premier.
“It’s a strange idea to think that the best thing we’ve done is the derogation clause,” retorts Bouazzi. “It’s irresponsible to say that the clause itself guarantees the nation’s greatness.”
“It absolutely must be clearly defined, because it opens the door to all sorts of abuses, to stepping outside the rule of law, to arbitrariness, to the whims of the majority.”
Bouazzi says he observes that “defending the rule of law at the moment is going against the tide”, before adding that he stands by his positions “entirely”.
–This report by La Presse Canadienne was translated by CityNews
