Prime Minister François Legault is right to puff out his chest: the judgment rendered Thursday by the Quebec Court of Appeal authorizes him to maintain his Law on State Secularism and confirms that it was neither excessive nor ill-advised to use the derogation provision to protect this legislative text from certain articles of the charters of rights in order to avoid legal challenges.
Ottawa’s angry and prompt reaction to this masterful judgment confirms that Quebec, to assert a specificity as crucial as its secularism, had no other option than to resort to this constitutional measure.
Judges Manon Savard, Yves-Marie Morissette and Marie-France Bich wrote a unanimous judgment, which adds to its unassailable character. These three eminent jurists have experience and enjoy an excellent reputation. Their judgment is devoid of the emotion contained in the first instance document – Judge Marc-André Blanchard, of the Superior Court, had expressed in some forms a strong annoyance towards Law 21. On appeal, the On the contrary, judges seem to have voluntarily tried to distance themselves from politics, sometimes very close to the law, to attack the legal merits of the case.
One of the key pieces of this judgment obviously concerns the use of the derogation provision. If this dry subject is not likely to excite the population, it is no less crucial. The Court of Appeal confirms that Quebec could use this unique clause to allow the Act to override court examination of certain rights guaranteed by the charters. This is precisely what Quebec needed to establish a law on secularism which imposes a ban on the wearing of religious symbols on certain state employees. Clearly, she risked being tested by the courts on aspects such as freedom of religion or expression or the right to equality.
This is precisely what irritates Justin Trudeau’s government, which is offended by two things: that Quebec seems to be evading certain fundamental freedoms, and that it has the audacity to brandish the notwithstanding provision in a preventive manner rather than as a last resort. appeal. Quebec is not the only one to have seen this as a way to protect its legislative autonomy, because other provinces, including Ontario and Saskatchewan, have done the same.
The Court of Appeal reassures Quebec: yes, “the legislator can use the power of derogation provided for by article 33 of the Canadian Charter in a purely preventive manner”. And yes, the principle of this clause is precisely to remove from the courts the opportunity to examine whether a law violates fundamental rights, “leaving it to political bodies and the electorate to decide the question”. If it cannot be denied that the existence of the exemption mechanisms provided for in the two charters “raises criticism”, write the judges, the debate has been had, and “it is not up to the courts to plug the loopholes, if there is one, a constitutional (or legislative) choice that some consider ill-advised.” We couldn’t agree more.
The Court of Appeal also corrects an incongruity caused by the Superior Court judge, who had literally created two regimes in the school system by granting the English-speaking network the privilege of being exempt from Bill 21 on the basis of a article of the Canadian charter which protects education in the language of the minority. The judges believe that the scope of this article has been misinterpreted, and they overturn the exemption enjoyed by English-speaking school boards to recruit teachers displaying religious symbols.
The duty maintains that the Law on State Secularism shows an inconsistency in subjecting teachers to its precepts – daycare educators, located next door, are not subject to it – but it was untenable that two distinct regimes coexist on the basis of a linguistic difference.
François Legault is jubilant. He rightly evokes a “great victory for the Quebec nation”. He bluntly promises to continue to use this derogation provision preventively if it is a means of having Canada recognize the legitimacy of its choices — we fully subscribe to this intention. “I will always fight so that we make our own choices,” says the Prime Minister.
This affirmation of parliamentary sovereignty, confirmed by the Court of Appeal, reinforces the Coalition Avenir Québec and its base in an autonomist posture which allows a strong national affirmation within the federation. It is a positioning which, however, in no way guarantees the easy path, quite the contrary. Quebec, which already has problems with Ottawa in a number of issues where attempts are being made to strip away its jurisdiction, must be ready to fight to defend its distinct status.
Seeing the confidence with which Ottawa promises to fight Quebec all the way to the Supreme Court, we understand how justified it is to want to fight the battle, again and again.