Bill 21 - What is actually Neutral?

Our story so far:

Section 90 of the Constitution Act, 1867 provides to the federal government of Canada an ability to disallow provincial legislation. Section 90 still exists, is still constitutional, although it hasn't been used since the 1940s. There is a good principled argument against using it, which has been expressed by Professor Peter Hogg, which is that - in its place - judicial review is always available to the federal government to challenge the constitutionality of a provincial law, and also that provincial "errors" that find their way into law may be later corrected by the conventional electoral/political process within the province. I very much agree with that approach, in general. However, there is an exception. Which is a provincial law that, by way of use of section 33 of the Charter (the notwithstanding clause), is largely exempt from judicial review, which negates Professor Hogg's first point. Such a law - as we can see in the Bill 21 case - is likely to be directed against an unpopular minority, meaning that the law is extremely unlikely to be corrected by the conventional political process, which negates Professor Hogg's second point. Therefore, the use of section 90 to void every law passed by every province that relies under section 33 of the Charter is a very good idea, fully in line with the fundamental principles that underlie our constitutional democracy. This is, in the result, a position that I urge all three federal party leaders to adopt, understanding that any province is free to pass any law without section 33 if it is prepared to argue in the independent courts of Canada that the law, to the degree it infringes *any* right under the Charter, can be "demonstrably justified in a free and democratic society."  Justice requires no less. 

Now, to continue the story, to the province of Quebec I would say: I generally share your stated purpose for the existence of Bill 21, which is to confirm the priority of the secular over the religious. But I suspect that that purpose is merely a fig-leaf around a desire to treat religious minorities, particularly Muslims, unfairly.  I say this because to place the secular over the religious does not require the overly broad action you have taken in Bill 21, which falls disproportionately on an unpopular minority. Indeed, as I will attempt to show below, it is entirely the wrong action if you really wish to reach your stated goal 

Consider this example: if there are 100 teachers in a high school, for example, and 90 are neutral on the religious clothing or symbols aspect (we will come back to the neutral idea later), and 6 teachers have some clothing or symbol associated with one religion, and 3 have clothing or symbols with another religion or faith, and one has clothing or symbols associated with still a third religion, what is the possible message to the students? That one of these religions is preferred over the other over the neutral? That the female students in the school are being encouraged to start wearing a hijab because a handful of female Muslim teachers wear it? Or that any other of the diverse and various religious articles of religious clothing are being endorsed by the school? Of course not. The message to the students from such a circumstance is quite the opposite. The message is that the secular state is, in fact, secular, and is strong enough and confident enough in its actual secularity to allow a broad range of minority religious expression, however idiosyncratic and archaic such expressions might be. This, it is clear, is the actual triumph of the secular over religious, which I support. 

Furthermore, is the so-called neutral majority really neutral at all? No, it is not, in such a case as described above, the 'neutral' is merely the stand-in for the conventional majority. The message in a high school where only the allegedly 'neutral' majority can be expressed, but minority religious faiths can not, is that the falsely portrayed 'neutral' religious position is the only approved and acceptable religious position. And that is a pretty good description of what Bill 21 is actually doing. And it is pretty obvious as well that that is what the law was meant to achieve all along. Furthermore, it is absolutely clear that the intense scrutiny that a Charter challenge would involve would quickly reveal this to be the case, which is why section 33 is being used. 

To that I say: the use of the section 90 disallowance power is a completely valid, proportionate, and appropriate response to the use of section 33 within Bill 21. Indeed, as the dithering of the federal government up to this point has made clear, it is the only constitutional response that is available. 

Political Calculations and the Section 90 Disallowance Power

 Summary so far:

It is my contention that the federal party leaders of Canada (Trudeau, O'Toole, and Singh) ought to make a declaration that the federal power of disallowing provincial laws (found in section 90 of the Constitution Act, 1867) will be used regarding any provincial law enacted (or re-enacted) by a provincial legislature invoking the notwithstanding clause of the Charter of Rights and Freedoms (section 33 of the Constitution Act, 1982). I say this in the context of a teacher being fired, further to Quebec's Bill 21, for wearing a hijab in a Quebec classroom. Bill 21 is able to do this without any real threat of judicial review on Charter of Rights and Freedoms basis because of the use of section 33. It is my firm view, that Bill 21 and all legislation in Canada must be able to withstand Charter scrutiny. 

And I say again, that any provincial government can argue in court that its infringement on constitutional rights can be validated further to section 1 of the charter as "justified in a free and democratic society." I do not say that any rights are absolute. What I do say is that section 33 allows a provincial government to, in effect, target a particular minority, which is exactly what Bill 21 has done. I will never accept that as a legitimate constitutional use of legislative power in Canada. Hence my recommendation to use the sledge-hammer of section 90 disallowance power where the notwithstanding clause is used by a provincial legislature. 

I am satisfied that I have demonstrated that this option is not only principled and non-partisan, but would be a valid, legal, and constitutional action. I understand that it would be extremely controversial and I think that most people object to it on that basis. In my view, Canada could benefit from more controversy arising from a politically risky action to protect minority rights. 

POLITICAL CALCULATION 

As noted above, if use of s. 90 is not really a legal issue, then it is a political issue. So the question becomes, what is the political calculation that the various political leaders ought to take into account when considering it? I provide below the actual advice that I would give each of the three leaders, if asked.  

My advice is based on one assumption: the Bloc will, for the foreseeable future, be a significant presence in federal electoral politics in Canada, feeding and benefiting from Quebec nationalism. 

ADVICE TO TRUDEAU

If, as I sense, you are primarily interested in you and the Liberal Party continuing to stay in office, you will need something like the 35 seats in Quebec that you have now (Dec 2021). If you take action against Bill 21, there will be a backlash in Quebec and that could quite possibly reduce the number of Liberal MPs elected in Quebec in the next election, so conventional political advice would be to do what you are doing now about Bill 21, which is nothing. You will look weak, but what else is new? You can live with being weak. That is, after all, the core of your "sunny ways" appeal to the Canadian electorate and it is working so far. So stick with it. 

If you are interested in the long-term future of Canada as a healthy constitutional democracy, then you should take action. If not the s 90 disallowance idea, then something equally bold. There would be a god-awful fuss, and it might well hurt you electorally in Quebec, but it might benefit you electorally outside Quebec. As with many things in politics, it would be a gamble, but a gamble for a truly noble purpose. 

And what is power for? Doing nothing? 

ADVICE TO O'TOOLE

You need to abandon the hope that soft nationalists in Quebec will rally to the Conservative cause if only the party treads softly enough on provincial rights issues. This hope has led you, like the Liberals, to look weak, and only serves the long-term interests of the Bloc. Canada needs a Conservative Party that is really an option as a government-in-waiting, not simply the comfortable pew for the rural, hard-core conservative base. You need, therefore, to take some really decisive action to lead the Conservative Party out of the shadows and into the bold center of Canadian politics.  Having the Conservative Party act firmly to, in effect, protect the Muslim minority in Quebec would reset the dial in Canadian electoral politics. 

Just as for the Liberals, this would be a political risk for the Conservative Party. The short-term results are impossible to predict. In the long-term, such an action, at least in my view, would benefit the country and the Conservative Party. 

ADVICE TO SINGH

Who is running the party, you or over-paid consultants dreaming of the (unlikely) return of the Orange Wave? My advice: apologize for your failure to stand against Bill 21 in the recent election campaign and pledge to support the use of section 90 to disallow discriminatory provincial laws in the future. 

People understand sincerity. Will this gain you votes? Maybe, maybe not. But it will give you back your self-respect. One would have thought that would be the most important thing. 

Judges on Roller Skates

A number of comments were received via Twitter concerning my blog post this morning on why the federal party leaders ought to make a declaration that the federal power of disallowing provincial laws (found in section 90 of the Constitution Act, 1867) will be used regarding any provincial law enacted (or re-enacted) by a provincial legislature invoking the notwithstanding clause of the Charter of Rights and Freedoms (section 33 of the Constitution Act, 1982.) I take this time now to acknowledge and respond to those comments. 

POLITICAL FIREWORKS

A good number of people pointed out that the action I was suggesting the federal government take would, if actually implemented, make Quebec and likely other provinces extremely unhappy. I am aware of that. I am aware that - as they have done for 50 years or more - the nationalists and nationalist party in Quebec (and in Ottawa) would make hay out of such an action, to their short-term political and electoral benefit. No doubt about that. The cynical might say that the newly elected Bloc MPs will be glad to take advantage of the resulting fuss to win re-election to vest their pension rights. 

My response is this: nothing we can do (or not do) will make the nationalist sentiment in Quebec more content with being part of Canada. Assuming a trade of this kind would be acceptable, I am not willing to seriously consider sacrificing the fundamental freedoms provided to all citizens of Canada for the purpose of trying to placate those people who can never be placated. It is my view that constitutionally protected rights are not to be respected only when it is politically convenient to do so. I am never going to waver from that position, I fear. 

I would also observe that Pierre Trudeau made a very successful electoral career out of defying the nationalist element in Quebec, repeatedly. Voters vote for various politicians for reasons at various times. But one thing I am sure of: nobody ever voted for a political coward because they were a political coward. I think the results of the unnecessary federal election of 2021 proves that beyond doubt, where the three federal leaders outbid themselves in their efforts to assure Quebec voters they would not trample on Bill 21. And all that pandering got them nothing and only profited the Bloc. 

MR HALL'S THREE COMMENTS 

Mr. Thomas Hall provided the most sustained commentary on my post. Mr. Hall gives every appearance of being a fair and thoughtful person. He has an excellent legal mind and is a good commentator on Canadian political/constitutional matters on twitter. I respect his views and knowledge and I have on several occasions learned things from him over the years. He is always polite and well reasoned in what he says. So I take his comments seriously. 

Mr. Hall did not like that blog post, I think that is fair to say, and made three points. 

POINT 1

First Mr. Hall says I was too categorical in my original post in saying that the use of section 33 prevents judicial review on Charter grounds. He said, "I disagree: the court should first decide whether the right is violated and, if so, that s. 33 overrides it and preserves the statute."

This is, in my view, true but largely besides the point. If a case was brought on Charter grounds, then the process would be as he suggests. However, the right at stake in regard to Bill 21 is clearly in the nature of "religious freedom," and is, therefore, squarely within Section 2 of the Charter, and, in consequence, clearly subject to s. 33 over-ride because section 33 specifically notes that it works to allow provincial laws to operate notwithstanding the protections of section 2 of the Charter. There is, to my knowledge, no case that suggests that there is a legal test to decide if section 33 over-rides a right once identified as being of a category falling within a right neutralized by section 33. It just does. 

My view on this point is strengthened by the fact that no one has commenced a Charter challenge against Bill 21. (As noted yesterday, there is a court challenge under way that is, as I understand it, based constitutionally protected minority language education rights, not on Charter grounds). [see note 1 below]

POINT 2 

Mr. Hall notes that Mark Bourrie has "suggested that a previous court decision saying that provinces had no power to legislate wrt religion" exists and that this case might apply to the Bill 21 situation, "... which would be a better outcome" than federal use of the notwithstanding clause. 

I don't know of this case, but I assume it arises out of pre-Charter jurisprudence where there were some decisions premised on an "implied bill of rights." I have no objection to someone bringing an action against Bill 21 based on this "implied bill of rights" idea, if that is what it is. So far it has not been done and would be a high risk legal gambit with, in my view, a very low chance of success. [see note 2 below]

Given what we are facing, I do not think the federal party leaders should wait around for this long-shot possibility. That is exactly what they should not do. 

POINT 3

The final point and, of course, this is the dangerous one. Mr. Hall says what Professor Hogg didn't say. 

"IMO disallowance shld be reserved for a provincial law that wld adversely affect the federal union b4 it could be dealt w/ by the courts. For all other cases, there is now a solid constitutional convention against the federal gov's imposing its will in any matter within provincial jurisdiction under the Constitution."

As a preliminary matter, I would note: if point 2 says there is a Burrie case that says that religion isn't within the scope of provincial jurisdiction, we now have a contention that there is convention that prevents federal action on matters within provincial jurisdiction, including religion, one can only assume, given that that is what is at stake here in the Bill 21 controversy. So we are saying religion is both not a provincial matter at all, so lets over-turn Bill 21 on that ground, but, at the same time, lets not use the s 90 power to invade a provincial case on religious rights. I understand the idea of arguing in the alternative, and will do so below myself, but this is not a consistent approach, really. 

But no matter, the claim is for a solid constitutional convention against the federal government imposing its will on the provinces. The careful reader will note that Mr. Hall does not say there is a convention making the use of section 90 of the Constitution Act, 1867 unconstitutional.  Good thing, too, as we know that conventions aren't law (as will be discussed below) and so it would be, one would think, impossible for a mere convention to vacate written text found in the constitution. 

Mr. Hall presents no evidence for this convention. Again, Professor Hogg didn't say there was a convention in this regard in his constitutional textbook comments on the federal disallowance power.

In light of that, and in light of the fact that s. 90 is law, I would: (a) deny that there is any such convention as Mr. Hall describes, outside of the division of powers realm, (b) state that, if there is such a convention, it doesn't apply to s. 90 of the Constitution Act, 1867, and (c) if there such a convention, and if it does apply to section 90 (which it doesn't), it has no legal force such as to prevent the positive act by the federal government bringing section 90 into force regarding a particular provincial law. 

JUDGES ON ROLLER SKATES

During the 1981 constitutional battles, I was a student at Simon Fraser University in Burnaby, BC. I had the good fortune of having a political science course at that time with Professor Edward McWhinney. He was a recognized constitutional expert and was often on TV during this period. I remember in particular his comments on the 1981 patriation reference case of the Supreme Court of Canada which dealt largely with the ideas of constitutional conventions. He referred to it as a case of "judges on roller skates." What he meant was that there as majority of the court willing to say there was a constitutional convention preventing the federal govt of Canada requesting an amendment to the British North America Act without provincial support, but some of those judges - those with roller skates - switched sides on the question of whether that convention was legally enforceable. 

Here is the headnote from the case. 

Question 3—Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or govern­ments?

 

Answer —For the reasons stated in answer to Ques­tion 2, as a matter of constitutional con­vention, "yes". The Chief Justice and Estey and McIntyre JJ. dissenting would answer "no".

 —As a matter of law, "no". Martland and Ritchie JJ. dissenting would answer "yes".

This provides support for my contention that should the convention suggested by Mr. Hall exist, and not only exist, but exist in the face of the written text of the Constitution Act, 1867 (which is extremely unlikely), the judges on roller skates have made clear that it would have no legal force in opposition to a positive act by the federal government to bring section 90 of the Constitution Act, 1867 into force regarding a particular provincial law.  

POSSE OF COWARDS 

And that is what I do think: that the 3 federal leaders, that posse of cowards, ought to make a joint declaration. State that, henceforth, the federal disallowance power will be used (and only used) to disallow any and all provincial laws, from all provinces, that purport to rely on the notwithstanding clause.

TARGETING OUT A MINORITY 

And I say again, that any provincial government can argue in court that its infringement on constitutional rights can be justified. I do not say that any rights are absolute. What I do say is that section 33 allows a provincial government to, in effect, target a particular minority, which is exactly what Bill 21 has done. I will never accept that as a legitimate constitutional use of power in Canada. 

Notes [added Jan 1 2022]

1. Contrary to what I said above, there has been a run at Bill 21 on Charter grounds. See my blog dated Jan 1 2022 on the Superior Court decision in Hak.  The court declined to look behind s. 33 and upheld the law while declining to even consider whether the law infringed section 2 Charter rights. 

2. I  believe this case, or cases, were advanced in the Hak case and were rejected. 

Use of the Federal Power of Disallowance to Protect Minority Rights in Canada

 

The Principled Use of the Federal Disallowance Power in Canada:

Prevention of the Provincial Use of the Notwithstanding Clause

to Sustain Religious Discrimination

 

R.L. Bennett

December 2021

 

 

It is December of 2021 in Canada as I write this. A newly hired teacher, by all accounts otherwise acceptable, was fired this year in Quebec further to the provisions of Bill 21 because she wanted to wear a hijab while teaching.[1]  [The specific teacher was actually, as it turns out not fired but re-assigned to  non-teaching job, which changes very little.] The response of the Premier of Quebec, widely reported, was that this woman should never have been hired in the first place because the wearing of religious clothing or symbols in the provincial workforce, and the school room in particular, was what Bill 21 specifically outlawed.

 

So the issue seems clear: the fired [re-assigned] teacher had what all admit was a sincere attachment to the hijab as an honestly held tenant of her religious faith. The provincial legislation bans her from employment because of this honest and sincere religious belief further to the professed purpose of ensuring that the provincial government workface is, and is seen to be, secular in approach. Section 2 of the Charter of Rights and Freedoms[2] which if part of the Constitution Act, 1982, prevents such discrimination against fundamental freedoms (including religion), except to the degree that such discrimination can be “demonstrably justified in a free and democratic society.” We were all set for another tepid saw-off in the long-running but far from inspiring Canadian story of “freedom, but not too much.” But it isn’t going to happen. Why not? Because of Section 33 of the Charter of Rights and Freedoms: the notwithstanding clause. Which provides:

 

33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

Section 33 has never been used by the federal legislature in Canada, but it is being used more often by provincial legislatures, and not just Quebec. We were left with Section 33 as part of the uninspiring residue of our uninspiring constitutional crisis of the early 1980s. The then provincial premiers – or at least 8 of them – claimed the right to prevent the patriation of the Canadian constitution from Britain to Canada. After years of posturing and bluster, there was a compromise that included section 33.

 

It is my view that Section 33 – the notwithstanding clause – is fundamentally and profoundly illegitimate. It is inherently nonsensical – not to mention ethically compromising – to say, as Section 33 does, everyone, including hated minorities, have rights, unless the provincial legislature passes a law that will operate notwithstanding those rights. In other words, minorities have rights until the majority says they don’t.

 

But there is another part of the Canadian constitution that I say has possible application here, that would both deal with the specific problems of Bill 21 and, also, provide a counter-point to section 33 and provide somewhat of a happy ending to the 1980s constitutional disaster. Section 90 of the Constitution Act, 1867, provides the power to the federal government to disallow provincial laws. That is, prevent provincial laws from coming into full force and effect as laws. This power hasn’t been used in a while (it was last used in 1946) but it is still there. And, I would say, every bit as legitimate and capable of use as Section 33 of the Charter.

 

It is the position advanced here that the current Prime Minister of Canada on behalf of the federal government – supported by all major parties in the House of Commons – should issue a declaration that, going forward, the federal power of disallowance in section 90 will be used (and will only be used) to void any and all provincial laws, from any and all provinces, that purport to rely on Section 33 of the Charter to allow provincial legislation to infringe on rights that would otherwise be protected by the Charter. Given that Bill 21 has to be renewed in five years, unless it is quietly dropped, the federal disallowance power would be there waiting to be used for Bill 21's necessary legislative renewal.

 

There are two main objections to this approach. One is political, that the provinces, and Quebec in particular, would be angered by such a declaration by the federal government. To me this is a problem but less of a problem than legally sanctioned discrimination against religious minorities. Everyone can make their own decision on that point. Gut-check time. Are we or are we not a society that protects minority rights?

 

The other objection is more legal in nature, which purports to say that the power of disallowance is just a relic of Canadian constitutional history and either could not or should not be used. This view, it is said, is held by legal scholars (which is code for the fact that the courts have not said this). The quotation below from Professor Peter Hogg (a Canadian constitutional legal scholar, if ever there was one) from his 2010 textbook on the Canadian Constitution can be taken as representative of this view:

 

The federal power to disallow provincial statutes was frequently exercised by the dominant federal governments in the early years of confederation. Its use today would provoke intense resentment on the part of the provinces. If the federal objection to a provincial statute is that it is ultra vires or inconsistent with a federal law, the province may fairly insist that a court is the appropriate forum to determine the issue. If the federal objection to a provincial statute is that it is unwise, then the province may fairly reply that its voters should be left to determine the wisdom of the policies of the government which they have elected. In my view, the provincial case is unimpeachable: …. [3]

 

It is worthwhile to note that Professor Hogg does not say the federal disallowance power does not exist, or could not be used, just that it would be unwise to use it. Either, he says, settle things in the courts via judicial review, or rely on popular political will in the province to eventually self-correct the legislature's supposed error. 

 

In general, I would agree with him that the use of the disallowance power is not in tune with the fundamental nature of the Canadian constitution. But I do not hold this view in the context of the provincial use of the notwithstanding clause. I do not agree due to the simple fact that this situation, uniquely, does not fit within either of his arguments that there are two highly preferable alternatives to the use of disallowance power: judicial review and the reliance on the political process.

 

Firstly, the point of section 33 of the Charter is to remove the possibility of judicial review. As the situation stands now, it is precisely that option is not available at all regarding Bill 21[4]. I would pause here to note that the Quebec legislature could pass the law again without reference to section 33 and then try and justify the laws constitutionality before an independent court when it was challenged. The province might or might not succeed, but everyone affected would get their chance to bring their evidence before the court and make their arguments, which they cannot do now. Ultimately, it is likely the Supreme Court of Canada would have the final word. That final word would possibly not be uplifting - Canadian judges are, alas, typically cowardly - but at least it would be a final word from an independent and impartial adjudicator, which is exactly what we don't have now, and can't have, due to the provincial use of the notwithstanding clause.   

 

Secondly, as we know all too well in these times, minority rights, such as the rights of unpopular religious minorities, cannot be made dependent on political popularity. The mere thought is both surreal and repellant. If the provincial legislature can infringe on minority rights whenever it serves the perceived electoral fortunes of the government in power in response to public opinion, that is the problem, not the solution. 

 

To summarize: the use of the federal disallowance power to disallow provincial laws relying on section 33 of the Charter would be a principled use of a valid, existing, and legitimate constitutional power and would advance the fundamental constitutional values of Canada.  I would urge all federal leaders in Canada to make their position clear on this non-partisan approach to using the federal power of disallowance to protect minority rights throughout Canada such as those at stake as regards Bill 21 in Quebec.

 

 

 

 

 

 

 

---

[1] I will use the term Bill 21 in this paper, but the legislation is not a bill, it is an Act: An Act respecting the laicity of the State

[2] 2. Everyone has the following fundamental freedoms:

a.       freedom of conscience and religion; ...

[3] Peter Hogg, Constitutional Law of Canada, 2010 Student Edition: section 5.3(e).

[4] Note that Bill 21 has been challenged on constitutional grounds not related to section 2 of the Charter, specifically on the issue of minority educational rights. Even if successful, such a challenge would do nothing but legitimize the use of Bill 21 in the vast majority of the educational system of the province.  Section 2 religious freedom rights simply cannot be vindicated under this approach.