National Post (National Edition)
Notwithstanding the problems with Quebec's Bill 21 ...
THE WORST RECORD FOR COVID-19 DEATHS IN LONG-TERM CARE HOMES. — GLAVIN
Tuesday was a pretty major date in the life of the “notwithstanding clause” in our Charter of Rights and Freedoms — the usual English-language name for that document's Section 33. The charter, it's widely agreed, would not have come into existence without this little escape hatch. Yet until Quebec's Bill 21 passed in 2019, provincial legislatures had resorted fully to it just twice. It was a spectre haunting the country that stubbornly refused to materialize.
Now, however, the notorious Quebec “laicity” bill, which restricts the wearing of religious attire and symbols by public servants on duty, has been sent marching out into the world accoutred in the full armour of notwithstandingality. This law explicitly contradicts core charter rights, the Quebec legislature has said, and no court can do anything about it. What's French for “nyah nyah”?
The Superior Court of Quebec ruled on a multipronged challenge to Bill 21 Tuesday, and the judge, Marc-André Blanchard, suspended the application of the law to English-language schools in Quebec. This was the outcome of a broad reading of the Constitution's minority-language education rights, which can't be overridden by Sec. 33. But this was about the only success that the petitioners, who were a wide range of activists and rights groups, managed to achieve in round one of what is expected to be prolonged litigation.
The anti-Bill 21 squad understood that punching a hole in the notwithstanding clause was a long shot, but almost every species of argument they tried had something of that Hail Mary quality — at least in a court of first instance. They tried to argue that the law infringed on the exclusive powers of the federal government because it is essentially criminal law. In its effects, one of which was an exodus of Muslim teachers from the province, the law looks awfully punitive; it proposes to impose “sanctions” on Quebec public employees who violate it.
The judge admitted that there is some merit in this position, but Quebec's right to regulate its employees is not really questionable except where primordial
Anglo education rights are involved, and Canadian case law has, until now, taken a restrictive view of what counts as “criminal law.”
The petitioners also tried a creative but untested end run around Section 33. Provinces are allowed to invoke the notwithstanding clause to nullify the effect of charter Section 15, which guarantees equality before the law of the sexes. But, as attentive charter readers will have noticed, there is also Section 28, the rarely discussed other notwithstanding clause: “Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”
This has hitherto been considered to be a purely interpretive clause, which can't be used on its own to strike down a provincial statute. Otherwise, Sec. 28 could be used to strike down affirmative-action measures for women that are explicitly permitted in Sec. 15(2). And the whole idea of trying to decide which “notwithstanding” trumps the other is a gateway to madness.
So Justice Blanchard stuck with the traditional view of Sec. 28 — but this weird issue hasn't been road-tested in any higher court yet. (Bill 21 certainly had a disproportional practical effect on women, who found themselves excluded from public service careers because of obligations to wear a hijab, niqab or chador.)
In general the judge accepted the basic impenetrability of the (more famous) notwithstanding clause. He also made sure everyone knows he doesn't like it. In his preamble, Blanchard complains that the legislature's use of Sec. 33 seems “excessive, owing to overbreadth,” but he observes that he is bound by the “current state of law” and by “judicial discretion.”
This isn't very hard to translate into political English: “I'm just a lowly Superior Court judge. It's not for me to go after centuries of precedent with a big hunting knife, although the Supreme Court of Canada may, at some later date, feel more confident in doing that kind of thing.”
So there's definitely play left in the legal game. And Blanchard's partial annihilation of the law as it applies in anglophone schools has served to guarantee that Quebec's government — now panicking about the possibility that the Anglos will be seen to have freer schools capable of recruiting more widely than French ones — will appeal his decision even if nobody else is interested.