Following the displacement of a teacher wearing a hijab, Justin Trudeau condemned the Law on the secularism of the State (law 21). He does not accept that “in a free and open society someone should lose their job because of their religion”.
The legislator took advantage of a derogatory provision to suspend most of the fundamental rights and freedoms. Was it necessary to do so?
Why have you set aside, among other things, the presumption of innocence, professional secrecy, legal assistance, respect for private property, the right to an interpreter, habeas corpus? Judge M. A. Blanchard detected abusive behavior.
Asked by the magistrate to explain the charcutting of charters, the government representative claimed “that it was necessary to guard against the inventiveness” of the protesters of Law 21. Dumbfounded, the judge did not live this thin and disturbing explanation. Stunned, he perceived a “certain trivialization and indifference as to the real scope of the exemption exercise”.
On the thorny question of the judicial acceptability of a simple formal evocation of a derogatory measure – as opposed to a real explanation – Judge Blanchard ran out of steam. By reserving this decision in the ballot box, he avoided the fundamental question of the dispute.
Multicultural heritage
The Canadian variant of multiculturalism recognizes the uniqueness of minorities as groups with ethnic, linguistic, cultural and religious characteristics.
Any interpretation of the Canadian Charter (s. 27) must be consistent with the objective of promoting the maintenance and enhancement of the multicultural heritage of Canadians. As for the Quebec Charter, it protects the right of ethnic minorities to maintain and advance their cultural life.
In religious and cultural matters, charters serve as an anchor for individual claims. The role of the courts is to assess the facts, interpret protective measures and arbitrate disputes. Nothing escapes the judicial eye: fundamental values, religion, morals, culture, derogations, discrimination and so on.
Following the judgment full of historical references, Justice Blanchard validated the gist of Bill 21. He nevertheless recognized that the ban on displaying religious symbols violated the rights of the English-speaking linguistic minority. Disappointed, all parties made an appointment at the Court of Appeal.
Judicial halt
According to a recurring practice, the chief judge of the Court of Appeal, Manon Savard, can extend a formation from three to five (exceptionally seven) magistrates. The composition of an enlarged bench should ideally reflect Quebec society.
Usually, the parties to the case will seek to strengthen their initial submissions. They seek above all to scratch the inferences, interpretations and conclusions of the trial judge. The Court of Appeal will consider the evidence adduced. Judges have the advantage of having scrutinized the briefs of litigants. If necessary, they can benefit from analyzes by jurists / researchers. One thing is certain, the litigants undergo the test of the courtroom.
The provincial attorneys general have no interest in interfering in a Quebec political debate. The federal government, through its Prime Minister, has already hinted at its discomfort. The case has gone viral.
Unsurprisingly, outside Quebec, elected municipal officials are blowing the embers of francophone denigration. Placid, François Legault proudly displays his nationalist streak. In fact, he is perceived as a hybrid leader, that is to say an autonomist politician… and a sovereignist at heart.
High Court
The transfer of the file to the Supreme Court fully justifies federal intervention. The Canadian Attorney General’s mission is to defend federal laws and the integrity of the Constitution. There is no need for the federal government to fund private parties.
According to the Supreme Court1, our legal body includes guarantees other than those written in the Constitution. In Quebec, under the Duplessis regime, for lack of documented human rights protection, Justice Rand2 recalled that, since 1760, freedom of religion has been recognized as a fundamental principle in our legal system: “the possibility of asserting without constraint one’s religious belief […] remains constitutionally of the greatest importance to the entire Dominion ”.
His colleague Taschereau3 made the following observation: “Everyone’s conscience is a personal matter, and no one else’s. It would be sad to think that a majority could impose its religious views on a minority ”.
In 1982, the entrenchment of a charter in the Constitution had the effect of encapsulating in writing our rights and freedoms. This legal contribution has not erased the many opinions of the judges of the Supreme Court. The Canadian Charter (s. 26) “does not constitute a negation of other rights and freedoms which exist in Canada”.
Fundamental question
The Supreme Court will have to determine the legitimacy of the overriding provisions. Is a lip-service to this extraordinary measure enough? Given the parliamentary gag order, should the government establish the need for derogatory measures?
With respect to Justice Blanchard, these important questions cannot be resolved in the ballot box.
1. R. c. Oickle, 2000 SCC 38
2. Saumur affair in 1953
3. Chaput affair in 1954