05 February 2014

Op-Ed: The other notwithstanding clause (Section 28)

Op-Ed: The other notwithstanding clause

It seems obvious that there will be constitutional challenges to
Quebec’s proposed Charter of Values, which prohibits “conspicuous”
religious symbols for provincial civil servants and contains other
requirements purportedly relating to the removal of religion from the
provision of government services (and even some non-governmental
services, like daycares.)

Usually, the arguments revolve around
what seems to be a clear violation of freedom of religion under the
Canadian Charter of Rights and Freedoms, provoking in turn further
constitutional sabre rattling in other quarters that raises the spectre
of Quebec simply invoking Section 33, the “notwithstanding clause.”
Quebec has done so before. Supporters of the Charter of Values maintain
that the government could use Section 33 to validate the legislation to
preserve Quebec’s “secular” society.

What has not been
acknowledged, by the Quebec government, its supporters, nor any of the
other commentators on the issue is that there is a very obvious block on
using this “notwithstanding clause” when it comes to legislation
affecting the rights of women. There is, in fact, another
“notwithstanding clause.” Section 28 of the Canadian Charter of Rights
and Freedoms guarantees all rights and freedoms equally to male and
female persons, “notwithstanding anything in this Charter.” In 1981,
when the Charter was being negotiated, the feminist drafters of Section
28 successfully beat back an attempt to make it subject to the Section
33 override clause, in a very public battle. There is no question about
whether a province could use the Section 33 “notwithstanding clause” to
override a court decision invalidating a law on the basis of sex

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