Secularism: the third period

It’s like in hockey: you don’t end the game because the Canadian is ahead after the second period. Whatever anyone says in Quebec, it is normal that the contestation of the Law on State Secularism finds himself before the Supreme Court of Canada for a third period.

A case relating to fundamental rights and the use of the Canadian and Quebec charters of rights and freedoms will necessarily be argued all the way to the Supreme Court. We knew it from day one.

So when Prime Minister François Legault sees this as a lack of respect for Quebec, he is only trying in a not-so-subtle way to score nationalist points, precisely the kind of politically transparent speech that has caused him to lose a lot of support in recent years. last months.

That said, there may be surprises ahead, particularly regarding how the notwithstanding provision will be used.

Unlike hockey, in court, the third period is always decisive.

The very principle of the derogation – that is to say the right of the legislator to adopt a law which applies despite the charters of rights and freedoms – is not in question. It is enshrined in the Canadian Constitution and judges cannot change that. The way to deviate from the Canadian Charter was established by the Supreme Court (in the Ford decision on the language of signs in Quebec in 1988) and could therefore be modified by the Supreme Court.

In the Ford decision, the Supreme Court had only stated a formal obligation: it was enough for an article in a law to say that it applied despite the charters for the exemption to be valid. At the time, no one seemed to consider that this could be invoked preventatively.

Before the Quebec Court of Appeal, a few months ago, opponents of Bill 21 argued that the derogation should require more than a simple article of law to suspend all of the rights and freedoms protected by the charters.

The Court of Appeal did not accept this argument, but it was predictable: the lower courts will, out of deference, let the Supreme Court decide whether it must change its jurisprudence.

It’s infrequent, but it happens. In the past decade, the Supreme Court has done so twice on major issues. First, on medical assistance in dying. In 1993, the Court refused Sue Rodriguez to resort to what was then called assisted suicide. But in 1995, the Supreme Court noted the changes in Canadian society on this subject and opened the door to medical assistance in dying.

In 2015, the Court also recognized that there was a constitutional right to collective bargaining and elevated the right to strike to the rank of constitutional right protected by the Canadian Charter of Rights and Freedoms.

Opponents of the Law on State Secularism argued before the Quebec Court of Appeal that the preventive use of the notwithstanding provision went against the very idea of ​​the charters of rights and freedoms. What is the point of protecting fundamental rights from arbitrary or discriminatory decisions by politicians, if they can ignore them without any other justification than the adoption of a simple article of law? The Court of Appeal did not accept this argument.


The Quebec Court of Appeal

But in the Supreme Court, this should give rise to a very interesting debate – where there will be good arguments on both sides – between the right of elected officials to legislate and the protection of the rights of minorities.

One possibility, raised before the Court of Appeal, would be to use a test already established by the Supreme Court. The Oakes test says that a law can only limit a right under certain conditions. This law must in particular have an objective which responds to “urgent and real” concerns, and infringe as little as possible on the right in question.

If we applied this test – and it is not at all certain that the Supreme Court will want to do it – Bill 21 would be vulnerable.

How can we demonstrate that this law responds to “urgent and real” concerns when we know that in five years, it has only been applied in one case? A substitute teacher in Outaouais was transferred from the classroom to administrative tasks because she wore the veil.

Not certain, therefore, that this is sufficient to demonstrate the urgent nature of the law.

For the next few months, while waiting for the Supreme Court to hear the case, politicians would do well to speak less often. Thus, Prime Minister François Legault repeats a lot these days that the law is popular. It is a fact. But in the Supreme Court, this may become an argument against her.

Charters are there to protect rights – even those that are sometimes unpopular like freedom of religion – against a majority that would be hostile or indifferent. And the popularity of a law is really not the kind of argument the Supreme Court is going to entertain.

What do you think ? Participate in the dialogue


Leave a Comment