Face-cov­er­ing ban could spark Supreme Court bat­tle

The Prince George Citizen - - FRONT PAGE -

Iam sure that you have been read­ing a great deal about the new law in Que­bec that for­bids face cov­er­ings in pub­lic spa­ces. The law is aimed at cre­at­ing “re­li­gious neu­tral­ity and se­cu­rity.” I have writ­ten be­fore about how and why Que­bec has tried to cre­ate a sec­u­lar state. The at­tempt to sep­a­rate church from state in the prov­ince has a long his­tory go­ing back to the Quiet Revo­lu­tion.

There is much to say about this new leg­is­la­tion but I thought that I might take time this week to look at the po­ten­tial for the law to be chal­lenged. In my re­view of news sto­ries I have al­ready seen ques­tions emerg­ing about a Supreme Court chal­lenge and the po­ten­tial that Que­bec could use the not­with­stand­ing clause to up­hold the law if it is deemed to vi­o­late the right and free­doms of Que­bec cit­i­zens.

The not­with­stand­ing clause is one of the most dif­fi­cult clauses of con­sti­tu­tional law to ex­plain and that’s not be­cause it is com­pli­cated. It is dif­fi­cult be­cause I think that some­times peo­ple are in­cred­u­lous that such a pro­vi­sion ex­ists.

Sec­tion 33 reads: “(1) Par­lia­ment or the leg­is­la­ture of a prov­ince may ex­pressly de­clare in an Act of Par­lia­ment or of the leg­is­la­ture, as the case may be, that the Act or a pro­vi­sion thereof shall op­er­ate not­with­stand­ing a pro­vi­sion in­cluded in sec­tion 2 or sec­tions 7 to 15.”

There are also four sub­se­quent clauses that lay out how long the law can stay in force and that it can be re-in­stated as long as it is passed by Par­lia­ment or the leg­is­la­ture of a prov­ince.

So let me ex­plain what this clause means and how it works.

When the Char­ter was first sug­gested by Pierre El­liot Trudeau, he was at­tempt­ing to change the po­lit­i­cal cul­ture of Canada. Be­fore the Char­ter, much of the wran­gling in our con­sti­tu­tional his­tory was work­ing out which level of gov­ern­ment has power over par­tic­u­lar ar­eas of ju­ris­dic­tion.

Trudeau be­lieved that Canada needed, not only to pa­tri­ate the Con­sti­tu­tion but also to pro­vide a rule of law that would out­line the rights of cit­i­zens.

The Char­ter of Rights and Free­doms took some se­ri­ous ne­go­ti­a­tions be­cause Trudeau needed a ma­jor­ity of the prov­inces to agree to the changes that the new con­sti­tu­tion would bring to Canadian pol­i­tics and gov­ern­ment. While it might seem that pre­miers would be equally con­cerned with pro­vid­ing a list of rights, they were wor­ried that the Char­ter would trump the par­tic­u­lar po­lit­i­cal cul­tures of each prov­ince and over­ride their par­lia­men­tary supremacy. In other words, they did not want the courts to tell them what kind of laws they could pass.

As a com­pro­mise, the pre­miers of­fered up the not­with­stand­ing clause which would al­low Par­lia­ment or pro­vin­cial leg­is­la­tures to pass a law not­with­stand­ing the fact that the Supreme Court has said that the law vi­o­lates a sec­tion of the Char­ter and is not up­held un­der sec­tion 1 (which does al­low the state to limit rights and free­doms in ac­cor­dance with the prin­ci­ples of a free and demo­cratic so­ci­ety).

For my pur­poses here, let us as­sume that a law has made its way to the Supreme Court.

The ques­tion at hand is whether or not the law vi­o­lates a right or free­dom in the Char­ter. For Sec­tion 33 to be ap­plied, the law would have to vi­o­late a free­dom out­lined in sec­tion 2 (free­dom of con­science, re­li­gion, speech, assem­bly, etc.) or a right in sec­tions 7-15 (le­gal and equal­ity rights).

The clause can­not be ap­plied to laws that vi­o­late other sec­tions of the Char­ter.

So, in this case, if the law was deemed to vi­o­late free­dom of re­li­gion, the court would first have to ask if the law can be saved un­der Sec­tion 1. The court would then ask a num­ber of ques­tions in­clud­ing: “is the law’s ob­jec­tive a good one; is the limit to the free­dom as min­i­mal as pos­si­ble to meet the ob­jec­tive; does the law seem to fit with our ex­pec­ta­tion of liv­ing in a free and demo­cratic so­ci­ety?’”

If the court can an­swer yes to a num­ber of these ques­tions, the law may be up­held as con­sti­tu­tional.

But, if the law fails to pass the sec­tion 1 tests, then the law is said to be un­con­sti­tu­tional. Sec­tion 33 can then be ap­plied. Par­lia­ment or pro­vin­cial leg­is­la­tures can pass the law not­with­stand­ing.

The next few months will tell us how Que­bec’s law will be ap­plied and en­forced and it may also take us into an in­ter­est­ing le­gal bat­tle.


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