Last week, Judge Marc-André Blanchard cordially ended the hearings in a case concerning the constitutionality of Quebec’s ban on religious symbols, which prohibits teachers and certain other public servants from wearing such symbols at work.
“I am very happy with the way the trial went,” Blanchard told Quebec Superior Court lawyers on Tuesday. He said he was taking some time to clear his head and would likely make a decision sometime after February.
The 29-day trial, which combined several legal challenges to Quebec’s Secularism Act brought by groups including civil rights activists, the English Montreal School Board and a teachers’ union, was nevertheless at times bitter.
There was tearful testimony, intense cross-examination and, towards the end, accusations of sexism were leveled across the courtroom.
It was, however, a particularly acrimonious season in Quebec when it came to public debate on social issues. For long periods of time this fall, opinion makers forgot about the pandemic and furiously debated the acceptability of the use of the N word, the existence – or not – of systemic racism and various threats to freedom. expression.
Those who spoke out against racism in the province were told to leave by a tabloid columnist. Another described those who challenge popular provincial laws as “enemies of the people. “
The law on secularism has never been far from these debates.
Since Bill 21, which introduced the law, was introduced in 2019, it has become a hotbed of clashes between conservative nationalists, who argue that it protects a historic source of modern Quebec’s identity – secularism – and progressives, who see it as an unjustified transgression of minority rights and a factor of racial inequality.
The outcome of the constitutional challenge to Bill 21 will sort of decide which side is right.
But perhaps more fundamentally, the legal challenge could also establish who decides who is right the next time equally intractable political questions arise.
Who has the last word?
The legal challenge to Bill 21 involves a long list of complex but fascinating constitutional questions, such as the scope of unwritten legal principles and whether a province has the power to legislate on secularism.
It is almost certain that the Supreme Court of Canada will have to deal with these issues at some point, regardless of Blanchard’s decision.
Among the questions in court is who decides who strikes at the heart of what it means to live in a 21st century democracy, says Guillaume Rousseau, a lawyer who represented a pro-secular group at the trial.
“What is perhaps even more important than the issue of secularism is the question of who decides, and more specifically, who has the last word,” he said. “What happens when a parliament and a court, even the Supreme Court, don’t agree? “
This tension between the courts and the legislature can be phrased even more provocatively: Can the people ever make a mistake in a democracy?
The government of Prime Minister François Legault maintains that the answer is no.
Government lawyers argued that the secularism law was passed democratically, by democratically elected representatives, and enjoyed majority support in several opinion polls.
For a tribunal of unelected, federally appointed judges, repealing the law would be a blow not only to the Quebec legislature, but to the will of the people it represents, they said.
The National Assembly, the government lawyers told the court, is “the privileged place of important social debates and the organ of expression of popular sovereignty”.
The province makes this argument by invoking the notwithstanding clause, which allows legislatures to override some of the fundamental freedoms, legal and equality rights set out in the Canadian Charter of Rights and Freedoms.
“What we are saying is that when it comes to these rights, it is for Parliament – the National Assembly – to have the last word,” said Rousseau, who has worked as an adviser to the government during the adoption of Bill 21.
“This is how the Constitution was designed.”
Notwithstanding clause: loophole or pillar of federalism?
It is not clear, however, that this is how the Constitution was designed.
The idea of rights, after all, presupposes that legislatures can be wrong. As the majority pursues its interests, it risks losing sight of what is reasonable to ask of the minority.
This is what Alexander Hamilton, one of the founding fathers of the United States, called times of “bad humor” that give rise to “dangerous innovations in government”.
The Canadian Constitution provides a guide to determining when legislatures have deviated from reasonableness. And it’s usually the courts that decide when that happens.
The notwithstanding clause – a last minute inclusion in the Constitution – allows for temporary exceptions to this standard.
In theory, it aims to safeguard provincial autonomy and is considered an essential element of Canadian federalism.
But the use of the clause means the suspension of the court’s ability to control the legislature. Perhaps because this represents a fundamental contradiction to the basic idea of a constitutional democracy, the clause has been used sparingly, and usually with much controversy.
Premier Robert Bourassa used it in 1988 when the Supreme Court ruled that Quebec’s linguistic charter violated freedom of expression. The rest of the country was so outraged by Bourassa’s decision that some say he torpedoed support for the Meech Lake Accord.
Brian Mulroney, then Prime Minister, called the notwithstanding clause a “fatal flaw” in the Constitution, which “reduces your individual rights and mine.”
He has done nothing to remove it, however, and 30 years later, similar concerns are being raised.
Its continued presence in the charter is a reminder of an unresolved question about the nature of Canadian democracy: Are legislatures free to override fundamental rights without sanction from the courts?
Which rights matter most?
It is important because democracy is not static. It expands and narrows the notion of which rights are worth protecting.
Right now in Quebec, there is a lot of disagreement on this issue.
For some, the most pressing threat is not against individual rights but against democracy itself – in the form of judges and other unelected elites who interfere with the will of the people.
This threat may seem particularly charged in a place whose distinct culture struggles for survival and where many fear the homogenizing force of the federal government.
For others, the most pressing threat to democracy comes from periodic outbursts of “bad humor” by the majority, such as the populist tension in Quebec politics which was particularly strong this fall when it cried out at racial and cultural minorities. looking for a more inclusive society. .
Whenever the constitutionality of Bill 21 is resolved, the result is likely to change our understanding of Canadian democracy, if only by addressing the question of who decides when individual rights are to be respected versus majority opinion.
Your own opinion on the issue may well relate to which of these threats to democracy concerns you the most.