Face of Nation : National party leaders’ reluctance to intervene in a court challenge to Quebec’s controversial Bill 21 may have left the erroneous impression that there’s nothing the federal government can do to try to stop the law that bans teachers, police and certain other public servants from wearing religious symbols at work.
The Quebec government has, after all, invoked the Constitution’s notwithstanding clause to prevent its secularism law from being struck down as a violation of the Charter of Rights and Freedoms. But while use of the notwithstanding clause makes a court challenge more difficult, constitutional experts say it does not necessarily provide a blanket shield against charter challenges, nor does it prevent the federal government from pursuing other legal avenues.
Liberal Leader Justin Trudeau is the only national leader to leave the door open to a possible intervention by the federal government some day, although he says it would be “counterproductive” to do so now when a challenge by two civil rights groups is before Quebec’s Superior Court. Other than Trudeau, federal leaders seem happy to heed Quebec Premier Francois Legault’s admonition to butt out.
Conservatives’ Andrew Scheer, the NDP’s Jagmeet Singh and the Greens’ Elizabeth May have said they would not intervene to challenge the law, which they’ve nevertheless deplored. People’s Party Leader Maxime Bernier has chided his fellow federal leaders for even talking about something he deems to be entirely Quebec’s business.
All the tip-toeing around Bill 21 is no doubt primarily a reflection of the fact that Bill 21 is overwhelmingly popular in Quebec, a province that will be pivotal to the outcome of the Oct. 21 federal election.
But it may also reflect the fact that the legal options available after Quebec’s use of the notwithstanding clause are untested. As the only federal leader who hasn’t slammed the door on intervening, Trudeau may want to see how some of the arguments fare in court before deciding whether to take the plunge.
“Unless you can persuade courts to breach new legal ground, there really isn’t an obvious resolution,” says University of Ottawa law professor Carissima Mathen.
“There are some new arguments that have been raised by some scholars but it would be unprecedented so the court would have to be persuaded. I think people agree it would be an uphill climb.” “I think we’ll see people trying arguments that have not been used because they’ve not been needed before,” he adds.
Section 33 of the charter provides that a legislature may declare that a law will operate notwithstanding certain rights and freedoms otherwise guaranteed in the Charter of Rights.
One argument now being advanced is based on the fact that the clause applies only to some sections of the charter. Important ones, sections that cover fundamental freedoms, including the freedom of religion, legal rights and equality rights, but not the entire thing.
The notwithstanding clause cannot be used to shield a law from other provisions of the charter, such as Section 28, which specifies that the rights and freedoms referred to in the charter are “guaranteed equally to male and female persons.”
Because the secularism law affects Muslim women disproportionately, forbidding practically any distinctive clothing such as hijabs, Leckey says the courts might be persuaded that it violates Section 28. Mathen believes that “would be a tough sell” because Section 28 has generally been seen as an interpretive guide to the charter, not as conferring a stand-alone right.
Another argument revives Supreme Court rulings from the middle of the 20th century, in which the top court ruled that provincial laws limiting religious freedom were a matter of criminal law and, as such, could only be enacted by the federal government.
However, Mathen notes those rulings were made before the charter was enshrined in the Constitution in 1982. She doubts the courts would consider resurrecting them now.
