This is, without a doubt, a major victory for the Legault government in the matter of the Law on State Secularism. On Thursday, the Quebec Court of Appeal confirmed the validity of the Act, affirming the conclusions of the Superior Court regarding the application of the exemption provisions and canceling the exception that had been granted by the Superior Court to the school system English-speaker.
“The Court has confirmed Quebec’s right to make its own decisions, it is truly a great victory for the Quebec nation,” declared Prime Minister François Legault at a press conference, a few hours after the publication of the judgment.
In 2021, Judge Marc-André Blanchard of the Superior Court of Quebec had already maintained the essence of “Bill 21” by concluding on the validity of the preventive use of the provision derogating from the fundamental rights guaranteed by the Canadian charters and Quebec rights and freedoms.
However, the judgment expressed concern about such broad use of the notwithstanding provision. Judge Blanchard noted that Bill 21 constituted the first legislative text to simultaneously derogate from the articles of the two charters guaranteeing almost all rights and freedoms in the province. “No matter what perspective one has regarding Bill 21,” he noted, “it must be emphasized that this is not an easy matter. »
On the merits, he also noted that it seemed “indisputable” that several provisions of the law violate not only the rights guaranteed by the charters, but also the rights arising from international instruments of which Quebec is a signatory, in particular the International Covenant relating civil and political rights, and the International Covenant on Economic, Social and Cultural Rights.
Here again, one might say, not an easy task. However, the state of Canadian law, and this is what the Legault government and the defenders of Bill 21 rejoiced on Thursday, allows this. To put it quickly, and repeating the analysis made by both the Superior Court and the Court of Appeal, under the Ford decision of 1988, it is sufficient for provincial legislatures to include the desired exemptions in the law to shield them from judicial control.
This tool, although relevant, is specific to Canadian constitutional law: it tempers, on the one hand, the balance between the provinces and the federal government. It also helps preserve the autonomy of the legislature vis-à-vis the courts.
Quebec is not the only province to use the override provisions: Doug Ford’s government did so in 2022, and more recently, Saskatchewan too. In Quebec, on the other hand, this instrument, as we see these days, is politically charged: derogating from this ugly Canadian Charter “which we have not signed”, or even from this Quebec Charter which, supposedly, gives the courts disproportionate power, has become a clear political marker, a call for a certain electorate.
Ironically, the decision that the Legault government applauds today demonstrates that the courts show great deference to the legislature. The decision of the Court of Appeal makes interesting remarks in this regard, recalling that it is not up to it to judge the reasons for suspending the fundamental rights of citizens; and that the debate on the scope of the derogation provisions has already taken place.
The Court then notes that it is up to citizens, to civil society, to decide whether this way of doing things by the legislator suits it. Vote accordingly, it is basically said, that is not the business of the courts.
I believe that this is indeed the fundamental question that we must ask ourselves as a citizen.
If the override provisions act as a counter-power against Ottawa, against the judicial control of laws in general, fundamental rights, in the hands of citizens, also constitute a counter-power. We talk about preserving the autonomy of the legislator vis-à-vis the courts, but what about protecting citizens from legislative abuses?
Is the balance achieved here, when we suspend almost all of the rights guaranteed by the Quebec Charter, for a single law aimed at an abstract national affirmation more than it responds to a real issue?
In this issue, we often talk about the need to temper individual rights in favor of collective rights. Except that collective rights are always conditioned by the possibility of exercising individual rights. These collective rights are not exercised in the abstract, they are the sum of the rights and conditions of existence that are guaranteed to citizens. That being said, are we comfortable with the obvious erosion of the rights of religious minorities being caused here?
The answer, we understand, is yes — as evidenced by the support, among a certain generation at least, for Bill 21.
On the contrary, I think that we are shooting ourselves in the foot and weakening the social fabric by behaving in such an openly contemptuous manner towards the rights of minorities – not just religious ones, by the way. Building, asserting a collective identity “against” something has never led to great things.
The saga of “secularism” (let’s emphasize the quotation marks) has already left deep scars in Quebec society, because this “debate” was conducted without regard to its stigmatizing effect on all minorities. It is claimed that the majority’s affirmation of “we” has gained in the process, so to hell with the collateral damage. On the contrary, it seems to me that the divisions have never been so deep, on all sides.