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.

 

 

 

 

 

 

 

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[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.