The unanimous judgment rendered by the Quebec Court of Appeal on February 29 relating to the constitutionality of the State Secularism Act (Secularism Act) has been the subject, to date, of several comments. These mainly focused on the parliamentary sovereignty clause and its use by the National Assembly of Quebec to defeat a judicial declaration of inoperability by the courts.
In this regard, the views expressed by the highest judicial court of Quebec are consistent with the state of the law and confirm, correctly, that the power of derogation of article 52 of the Charter of human rights and freedoms of the Quebec, like that of section 33 of the Canadian Charter of Rights and Freedoms, “is based on the principle of parliamentary sovereignty in that the two provisions ensure that the legislator, and not the courts, has the final word in certain matters.
This conclusion is no different from that retained by Judge Marc-André Blanchard of the Superior Court of Quebec in the case Hak v. Attorney General of Quebecwho felt obliged to give full effect to the derogation provisions contained in articles 33 and 34 of the Law on State Secularism.
It is on the question of interpreting the scope of section 23 of the Canadian Charter conferring “education rights in the language of the minority” that the Quebec Court of Appeal truly sets the record straight. time. Invited to declare that sections 4, 6, 8, 9, 10, 13, 14 and 16 of the Secularism Act governing the wearing of religious symbols by staff of English-speaking school boards constituted unjustified violations of section 23 of the Canadian Charter making it inoperative with regard to them, the trial judge gave section 23 such a broad scope that it allowed him to make the provisions of the Secularism Act providing for such a prohibition inapplicable to English-speaking school boards.
To achieve such a result, the magistrate of the Superior Court of Quebec will rely on the case Mahé c. Alberta of the Supreme Court of Canada. In this case, the Court recognized that “ [l]he representatives of the linguistic minority must have the exclusive power to make decisions concerning instruction in its language and the establishments where it is provided relating to it, in particular “the development of the language and culture” of the linguistic minority [et ce qui] is essential for its achievement, [soit] control over aspects of education that concern or affect one’s language and culture.
Taking this assertion into account, it will first extend the scope of linguistic rights by including “linguistic and cultural education”. After having distinguished the notions of language and culture, he will affirm, without any real explanation, that “ [d]In the current context, there is no doubt that religion contributes to the cultural identity of a community.” He added: “For example, no one could reasonably maintain that, at least until the mid-sixties, the Catholic religion did not significantly participate in defining one of the cultural traits of the French-speaking Quebec population, all the while as, in general, Protestantism could do for the English-speaking community.
A severe call to order
In the part of its judgment on section 23 of the Canadian Charter, the Quebec Court of Appeal calls the trial judge to order and corrects his error of law. Very extensive, spanning 100 paragraphs and more than 37 pages, the Court’s development gives rise to an in-depth analysis of the applicable principles of interpretation and the scope of Article 23 as well as a detailed examination of the case law relating to this article.
At the end of this analysis and examination, the three judges of the Court of Appeal rejected the argument, ultimately accepted by the judge of first instance, that the establishments resulting from article 23 have the ability “to perpetuate and promote the particular “culture” that is said to be conveyed in the English-language school network, a culture which would encourage diversity, particularly religious diversity.
The judges added: “This is not the case in this case. Rather, we try to agglutinate around the notion of “culture” elements which have no direct relationship or even simple proximity to language. In the best case for the parties opposed to the Law, which is not demonstrated, such elements are located on the far periphery of the notion of culture. Claims are thus brought before the Court which, in the light of the relevant case law, have nothing in common with the claims which, over the last thirty-five or forty years, were deemed admissible and founded within the framework of the Section 23 of the Canadian Charter. In other words, the first instance judgment gives Article 23 a scope that it does not have. »
The Court therefore rules that the trial judge erroneously concluded that the State Secularism Act violated section 23 of the Canadian Charter, reforming it on this point to overturn its mechanism.
What will be the opinion of the Supreme Court of Canada on this question, which we must assume will accept authorization to appeal the judgment of the Court of Appeal? Unlike the Quebec Court of Appeal, will it be more sensitive to arguments based on section 27 of the Canadian Charter according to which the interpretation of the Canadian Charter, including section 23, “must be consistent with the objective of promoting the maintenance and enhancement of the multicultural heritage of Canadians.”
It is not impossible that she sides with the Superior Court of Quebec and that she in turn wants to reform the judges of the Court of Appeal and break their system on this point. To be continued !