The decision of the Quebec Court of Appeal to validate Law 21 on state secularism could relaunch the debate surrounding the derogation clause which allows governments to evade the charters of rights.
Patrick Taillon, a law professor at Laval University, says this clause helps control the powers of judges. According to him, governments must have the possibility of evading court decisions to implement laws, particularly those which obtain great popular support. Like law 21.
His colleague Louis-Philippe Lampron believes that by mentioning a “parliamentary sovereignty clause” rather than a derogation clause, the Quebec government is trying to minimize the fact that it is suspending fundamental rights.
However, the Court of Appeal had little choice in validating the law because of a Supreme Court decision in 1988 which gave the provinces wide latitude to invoke the notwithstanding clause.
Law 21 prohibits the wearing of religious symbols by state employees in positions of authority, including judges, police officers and teachers. The Court of Appeal, however, rendered inoperative the article which required elected officials to exercise their functions with their faces uncovered.
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