Face-covering ban could spark Supreme Court battle
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.