The debate in the Court of Appeal on the Law on the secularism of the State opened with a piece of size: the opponents of the legislative measure attacked the “derogation clause”, used by the CAQ government to shield its law from challenges based on discrimination against religious minorities.
Quebec’s highest court has begun hearing arguments from all those who want to overturn the decision of Superior Court Judge Marc-André Blanchard, who largely declared the law valid.
Over the next few days, the Court will hear argument by theme. The first on the list is the notwithstanding clause, she revealed on Monday morning.
The use of this clause — also commonly referred to as an override clause — was criticized by Judge Blanchard in his April 2021 decision.
“As guardian of the rule of law, the Court must question itself on such a wide use of derogation clauses”, he wrote, echoing a criticism repeatedly made to the CAQ government, for this law but also for others adopted during his last mandate.
“Questioned by the Court as to the reasons which would justify such a broad derogatory exercise, the representative of the Attorney General of Quebec stated that it was necessary to guard against the inventiveness of people who would like to challenge “Bill 21”. This is a very thin and disturbing explanation, ”continued the magistrate.
But given the legislation in force, Judge Blanchard had rejected the majority of the challenges, and maintained the law, except for the English school boards and the elected members of the National Assembly. It thus invalidated certain articles of the law — known before its adoption as “Bill 21” — to exempt them from its application.
This prohibits the wearing of religious symbols by certain government employees when performing their duties, such as elementary and secondary school teachers to the public, police officers, judges and Crown prosecutors.
The derogatory clause without “political cost”?
The Autonomous Federation of Education (FAE) was the first to go to the lectern on Monday morning.
A democracy without protection of minorities is not one, launched Me Frédéric Bérard, one of the FAE lawyers.
He asked if there is still today a “political cost” to the use by a government of the derogation clause. Me Bérard also noted that the government of François Legault, far from having been penalized for his gesture, was rewarded since he added many CAQ deputies to the benches of the National Assembly in the last elections.
The AWF does not adopt this view that a majority government can do anything when it comes to violating fundamental rights.
The lawyer for the legal committee of the Coalition Inclusion Québec, Ms.e Alexandra Belley-McKinnon, questioned the very use of the notwithstanding clause: it cannot be invoked if the law pursues an illegitimate objective, she pleaded.
And that’s the case here, she insisted: the only purpose of the State Secularism Act is to take away rights from groups while violating the Canadian Charter of Rights and Freedoms.
More details will follow.