Face of Nation : Quebec’s religious symbols law was not yet 12 hours old when it became the subject of a Superior Court motion seeking to have it struck down.
On Tuesday, the motion, filed last month by the National Council of Canadian Muslims and the Canadian Civil Liberties Association, will get its first hearing before a judge.
Given widespread concerns about the law’s potentially harmful effects on minorities, legal experts predict other court challenges are likely to follow.
But as opponents of the law turn to the courts, they will have to confront one big obstacle.
The legislation, which bars public school teachers and other authority figures in public service from wearing religious symbols at work, invokes Section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the notwithstanding clause.
That means those sections of the Charter that set out fundamental freedoms (Section 2), as well as legal and equality rights (sections 7 to 15), can’t be used to argue the religious symbols law is unconstitutional.
In other words, the usual route for challenging a law’s unfairness has been cut off.
There has emerged, though, a vibrant debate among legal experts about how to get around the notwithstanding clause and challenge the religious symbols law constitutionality anyway.
In newspaper op-eds, specialist publications and blog posts, law professors and lawyers have been parsing over subsections, wording and case law that stretches back decades.
Their arguments have already inspired one legal challenge, they could inspire others, and in the process, reshape how we see the Constitution.
The motion that will be argued Tuesday is seeking a partial stay of the religious symbols law while the courts take time to consider the deeper claim being put forward by the NCCM and CCLA: that the law is unconstitutional.
This deeper claim draws on three theories that have been circulating within legal circles since the Coalition Avenir Québec government tabled the legislation, also known as Bill 21, in the spring.
The first relies on the surprising position that Bill 21 amounts to “criminal legislation,” which provincial governments don’t have the jurisdiction to pass.
But there is a fair bit of jurisprudence going back decades that suggests this argument has a fighting chance of swaying judges, said Maxime St-Hilaire, a constitutional law professor at the Université de Sherbrooke.
When Bill 21 was tabled, St-Hilaire wrote a blog post pointing out that since the 1950s, the Supreme Court has tended to consider legislation affecting religious freedom to be criminal law, especially when there is a penalty attached to the expression of a religious belief (or non-belief).
That opens the door, he said, for lawyers to argue that Bill 21 is unconstitutional not because it violates fundamental freedoms laid out in Charter, but because it tramples on federal jurisdiction by virtue of the restrictions it places on religious freedom.
“There is a long line of cases that strongly suggests a province can’t do that,” St-Hilaire said.
The other ways the motion filed last month seeks to get around the notwithstanding clause is by arguing Bill 21 violates minority rights and the rule of law.
These are two principles are not explicitly mentioned in the Charter, but lawyers will try to argue they represent basic constitutional rules that can’t be broken by Canadian lawmakers.
On their side is the 1998 Supreme Court decision about whether Quebec can secede from the rest of Canada.
In that ruling — in which the judges ruled Quebec cannot separate from Canada unilaterally — the court declared there were unwritten principles in the Constitution that are as binding as anything written in it.
“The Supreme Court was careful to say that we should still be guided by the written text of the Constitution, but these principles open up a space for protecting the rule of law and minority rights beyond the Charter,” Colleen Sheppard, a constitutional scholar at McGill University, said in a recent email exchange.
When it comes to challenging Bill 21, lawyers will try to prove the law’s definition of a “religious symbol” is overly vague. A bracelet worn by a Sikh, for instance, could appear religious to one person and merely decorative to another.
This raises the likelihood, according to the Quebec Superior Court motion, that the law will be applied differently from one context to the next.
And that runs counter to the principle of the rule of law, which the Supreme Court said “provides a shield for individuals from arbitrary state action.”
In that same 1998 ruling, the court also said “the protection of minority rights is itself an independent principle underlying our constitutional order.”
The motion being heard Tuesday argues that principle is upheld by making sure public institutions are accessible to everyone.
By banning authority figures from wearing religious symbols at work, Bill 21 alters the inclusive nature of institutions like schools or the police, the motion adds. That’s like altering the Constitution itself, which Quebec can’t do on its own.
The appeal of these arguments is that neither depends on the Charter, and so aren’t affected by the notwithstanding clause.
But they are also venturing into relatively unknown territory. “There is not a long list of legislation being struck down by virtue of an unwritten constitutional principle,” said Robert Leckey, dean of McGill’s law faculty and a prominent opponent of Bill 21.
