All that for this ! It was well worth the trouble to amend the Quebec Charter of Rights and Freedoms for the first time on the division of the National Assembly and under the gag order for a law which, after two years of application, will have affected only one anybody.
This is reminiscent of the conclusion of the Bouchard-Taylor commission report which, after studying for months what has been called the “crisis” of reasonable accommodation, concluded that it was above all “in the minds and in the minds.” perceptions ”.
It’s a bit the same thing with Bill 21. The CAQ government would like to make it a sort of founding law for our living together, a sort of end point to a heart-wrenching social debate. But in the end, it only found application once in two years.
And, let’s be serious, Bill 21 did not prevent in a preventive way hordes of veiled women or men in turban from breaking onto schools or police stations in Quebec.
But it is quite possible that the relative uselessness of Bill 21 is now used by those who want to challenge it, starting with the case which will end up before the Quebec Court of Appeal next fall.
Obviously, one might think that Bill 21 is shielded with the use of the notwithstanding clause, both of the Canadian Charter and of the Quebec Charter of Rights and Freedoms.
By the way, this often-forgotten charter will be important in the rest of the debate. Let us remember that it was adopted freely and unanimously by the National Assembly long before we started to talk about such a charter in Ottawa. The argument that this law was imposed on Quebec therefore does not hold water.
The continuation of the legal debate is very likely to unfold on the very nature of the exemption clause. Be careful, it’s a bit complicated, but it’s an important debate.
Can a legislature pass the laws it wants and protect them by “notwithstanding” or if there are limits? Are there simply formal requirements or whether the courts can examine the substance of the matter?
Currently, case law considers the requirements to be only formal. For the exemption to be valid, it suffices to use the procedure provided for in the Constitution, that is, to declare that the law applies independently of the Charter of Rights.
It is already obvious that several of the lawyers who pleaded in first instance before the Superior Court will try in the following stages to convince the judges and the Supreme Court in last instance, that it is necessary to further define the use of the exemption.
There are already guidelines in the case law for interpreting the Charter. Among other things, we will demand that if we violate rights guaranteed by the charters, it must be for “a real and urgent objective”. It is contained in the judgment Oakes, one of the first Supreme Court judgments on the interpretation of the Charter.
At the Superior Court, Judge Marc-André Blanchard did not want to go in this direction, but he practically invited the superior courts to take an interest in it.
Lawyers will come back on appeal to say that the courts should have a little more to say about the use of the exemption. And that they must, at least, rule if the object of the contested law constitutes a “real and urgent objective”.
It is not certain that the Supreme Court will want to review its case law and it would be unwise to try to predict its answer on the question. But we can be sure that the legal debate will move in this direction.
Which begs the question: Does a single case in two years pass the test of a “real and urgent goal”? Was Bill 21 intended to solve a major and urgent problem or was it not rather a fairly transparent attempt to gain political capital?
Prime Minister François Legault certainly does not help himself by repeating every time we talk to him that Bill 21 is popular. Except that the charters of rights exist precisely to protect minorities against unjust laws but popular for the majority. A survey, in court, it does not weigh very heavily.
Meanwhile, in Ottawa, there is mounting pressure on the Trudeau government to intervene in court, which it will no doubt do when the case goes to the Supreme Court.
But what is certain is that the legal debate is far from over and that new speakers and arguments will be added in the coming months. And these will not necessarily be twists and turns that will go in the direction that the Legault government wants.