With the incredible judgment of the Court of Appeal yesterday on Bill 21, we can speak of a clear victory for several people and ideas.
First, from the Coalition Avenir Québec of François Legault, who dared to legislate on secularism, in a political and legal environment which told him to do nothing.
Inhibiting test
For around forty years, legislators have been inhibited by telling them that their ideas must absolutely “pass the test of the courts”.
And since everything or almost everything is found in case law, the result amounted to paralyzing politicians, who prevented themselves from legislating or who chose to wait for magistrates to pronounce themselves.
In this corset, Quebec could not express its own choices as a “nation”, even though it was recognized by parliaments (if not in the constitution).
A first crack in the wall of the sacrosanct “court test” was made by the end-of-life care law of 2014. Legislators returned to boldness, forcing the Supreme Court to review its interpretation of the right to the life. The legislative and judicial powers must be able to dialogue.
Consensus
Upon its arrival in government in 2018, the CAQ chose to incorporate into law the Quebec consensus on the relationship between religion and the state. A relationship which, due to history, differs from that which prevails in the rest of the continent.
The government then dared to use the exemption provision contained in the constitution.
This provoked the ire of many jurists, now trained to admire judges and despise legislators. Some of them even hoped that the Court of Appeals would begin to declare the preemptive use of the notwithstanding provision unconstitutional (which would constitute an indirect and illegal constitutional amendment).
On the contrary, Judges Bich, Morissette and Savard recalled the case law: in 1988 in the Ford decision, the Supreme Court had already said everything. The exemption is in the constitution and is therefore permitted. Period. (This, by the way, does not bode well for those who challenge Law 96 on the French language.)
As the judges clearly point out, everything else is political: “The public backlash and citizen reaction are also a bulwark against the use of the exemption provisions. […] the electorate has the power to defeat the government that has used (or abused) the right to derogate.”
Finally, note that the Court of Appeal convincingly unravels the dubious argument of Justice Blanchard (of the Superior Court), who overstretched the rule of autonomy for minority school boards in order to exempt English-speaking institutions of the application of law 21.
The latter, quick to go to court, will undoubtedly want to pursue the challenge in the Supreme Court. Federal lawyers will get involved. And despite the solidity of the Bich-Morissette-Savard judgment, those who claim victory today could soon become disillusioned. In the meantime, the CAQ will be able to speak with more credibility about its third way between “liberal Canadianism” and “PQ sovereignty”.