What should prevail in the debate on secularism? The authority of the National Assembly and the majority of the population, as Prime Minister François Legault reiterates, or that of the courts and of minorities alleging violation of their rights?
Posted at 1:00 p.m.
In a liberal democracy, that is to say where it is recognized that it is legitimate to limit the power of the majority, the answer to this question calls for nuances. It demands that we remember the dual nature of the democratic principle.
Democracy is both a decision-making mechanism and a justification mechanism. If we keep this reality in mind, we can recognize that the National Assembly and the courts play a complementary role in the debate on secularism.
Democracy is a decision-making mechanism. Thus, the majority principle makes it possible to settle a debate (referendum) or to choose the temporary holders of power (elections).
The Legault government refers to this conception of democracy when it affirms that it was elected to put an end to the question of secularism, which the majority spoke about during the election, and which it is therefore important to withdraw from courts the power to determine whether or not Bill 21 violates the individual rights recognized by the Quebec and Canadian charters.
Democracy also refers to a mechanism for justifying decisions based on listening and rational deliberation.
As a principle of justification, democracy is based on a belief shared by all that some ideas or conclusions are better than others, that rational processes allow us to identify these ideas, and that deliberation remains the most effective in distinguishing the desirable from the undesirable.
There is no democracy possible without the conviction that the truth matters more than everyone’s impressions, and that it does not always conform to the “opinions” of the majority.
Other institutions, even if they are not elected, can listen to the legitimate concerns of the many publics that make up the people of Quebec.
The courts play such a role, because they can only decide after having carefully listened to and confronted different versions of what they have been presented with as the expression of the common good.
When the democratic principle is considered from this double perspective, it is possible to propose an interpretation of the derogation clauses which recognizes a complementary role for the National Assembly and the courts in the debate on secularism.
The use of a notwithstanding clause has the effect, argues the government, of preventing any challenge to a law in the courts.
However, that is not what the notwithstanding provisions say. The notwithstanding clause of the Canadian Charter provides that a legislature may enact “a law expressly stating that it … has effect notwithstanding any particular provision of section 2 or sections 7 to 15 [garantissant les libertés fondamentales] of this charter” and that “the law which is the subject of a declaration […] has the effect it would have except for the relevant provision of the charter”.
In other words, the law will have full effect, despite the infringement of one of the rights from which it is permitted to derogate. The notwithstanding clause of the Quebec Charter has the same scope.
However, nothing in this article prohibits a court from examining whether or not the enacted law infringes a right.
A court could therefore, in all legality and legitimacy, “declare” the existence of an incompatibility between the law and the Charter, without however going so far as to invalidate the law, such a thing being clearly prohibited by the provision cited above. .
What could such an approach be used for? To feed democratic debate, by allowing the courts to contribute to it, by clearly explaining how the law does or does not comply with Quebec law (Quebec Charter), Canadian law (Canadian Charter) and even international.
If one accepts this interpretation, the notwithstanding clause would have full effect, i.e. the wearing of religious symbols would be prohibited as required by law, but the government would have to live with the possibility of a “declaration of ‘incompatibility’ of it by the courts.
I say “possibility” because it is not said that a court would refuse to recognize that Bill 21 is a reasonable limit that is justified in a free and democratic society.
Under this interpretation, the rule of law would be respected, because a court would be authorized to assess the compatibility of the law with the charters.
The sovereignty of the National Assembly (and of the majority) would also be so, because, despite the judicial condemnation of which the law would have been the object, the government would not have to modify it and it would continue to apply in all its rigor.