No Implied Amendment

 Here is a cogent comment I received in regard to my suggestion to use s. 90 of the Constitution Act, 1867 to disallow any provincial laws passed incorporating the notwithstanding clause found in section 33 of the Constitution Act, 1982. 

Even as a legal matter, that is a dubious theory. You propose to use a ~150 year old provision to counteract a SUBSEQUENT clear legislative intent to allow provinces to unilaterally override the charter. That seems to fly in the face of principles of legislative interpretation.

So this a good legal argument and I expect it would be used if this matter every came to Court. It is a sort of a distant cousin of the "convention" argument but better, I think. But it is, I believe, not a winning argument. For a number of reasons. 

Firstly, all of the Constitution Act, 1867 is 150 years old, not just section 90. There is no doubt that the 1867 Act continues in force, including s. 90, the disallowance power. It is true that s. 33 was meant to allow provinces to unilaterally void parts of the Charter of Rights, but it is a provision that has to exist in the context of the rules in the 1867 Constitution Act. For example, there is in section 31 of the Charter the following statement, "Nothing in this Charter extends the legislative powers of any body or authority."  Clearly the division of powers, including section 90, arguably, were not to be taken to have been left behind by the major changes made in 1982. 

So the use of the word "counteract" in the criticism above is a little vague isn't it? I mean what is the process that the critic is anticipating would be used in court against section 90? The Court, I suppose, would say, "ah ... section 90 was used, but it can't ... ah ... counteract s. 33, so it didn't void the provincial law in question, but maybe it could be used to void a provincial law that didn't rely on section 33 ... maybe." Either section 90 exists and it can void any provincial law, including a law relying on section 33, or it doesn't. But, of course, it does exist. 

Further to that point, section 90 of the Constitution Act, 1867, is a constitutional provision. The ordinary rules of legislative interpretation have to be, therefore, tempered - to assume that s 33 of the 1982 Act has, in fact, amended section 90 of the 1867 Act out of existence would be to assume that a major constitutional amendment had been made by inadvertence. Hardly likely. 

I am confirmed in this thinking by the fact that Professor Hogg, hardly a friend of section 90, did not advance this "implied amendment" theory in his attack on section 90 in his constitutional law textbook. 

In addition, in the text of the Charlottetown Accord section 90 was slated for removal by way of an actual constitutional amendment. Which is very clear evidence that the provinces were trying to do in 1992 what they failed to do in 1981. Which is also clear evidence, should more be needed, that section 90 remains fully in force and equally valid constitutionally as section 33. Perhaps more so.

 Frankly, if section 90 was only used to disallow provincial laws that attempted to rely on section 33, then it would actually be advancing the fundamental principles of Canadian constitutional democracy, which is not something that can be said of section 33, the evil notwithstanding power. 

Bill 21 case in Quebec courts: Hak v. AG Quebec

        Treatment by Quebec courts of Bill 21 so far.  (Jan 1 2022)

The case of Hak v. Attorney General of Quebec, 2021 QCCS 1466 (Quebec Superior Court) April 20, 2021, combined a number of challenges to Bill 21, some on religious freedom grounds, but others regarding minority education rights, or other Charter rights. The below text is from the April 20, 2021 judgement of the Quebec Superior Court in the Hak case, except text in bold and italics which is my text. The numbers in square brackets are paragraph numbers from the Courts reasons. Note that judgement was published in French, the translation below is unofficial, and that the word "Tribunal" would probably be normally rendered as "Court." The religious freedom arguments failed, due to the existence of the notwithstanding clause. The minority education rights largely prevailed. (As expected the matter has been appealed. Go to bottom of post for update on Court of Appeal) 

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[Unofficial translation] [ 4 ]   In summary, for the reasons that follow the Tribunal finds that:

-    The counting exercise carried out by the State before the adoption of Law 21 does not give rise to the issuance of an injunction as requested by the Autonomous Federation of Education

-   Law 21 has all the attributes of a law on public order and morality, but it does not fall within the federal jurisdiction of criminal law by virtue of article 91 (27) of the Constitutional Law of 1867 [3], because the rule of stare decisis requires that in order to do this it must include a penalty, while Law 21 does not include any;

-  Bill 21 rather falls within the scope of provincial jurisdiction according to article 92 (16) of LC [Constitution Act] 1867 which deals with matters of a purely local or private nature in the province when Bill 21 is analyzed solely in terms of persons that it aims in the field of education; of Article 92 (4) which deals with the creation and holding of provincial offices, the appointment and payment of provincial officers for the remainder of Law 21, although Articles 13 to 16 of Law 21 fall under of article 92 (13) which deals with property and civil rights in the province since these articles deal with collective agreements, while the modification of the Charter of human rights and freedoms [4] , and therefore of the Constitution of Quebec, derives from section 45 of the Constitution Act, 1982 [5] ; 

- The pre-Confederation laws, in this case the Quebec Act of 1774 [6] , the Law of 1852 on "rectories  " [7] and the Hart Law of 1832 [8] do no not invalidate the provisions of Law 21;

-     Bill 21 does not violate the Canadian constitutional architecture or the rule of the rule law;

-      Articles 5 and 6 of Law 21 do not violate the principle of judicial independence;

- The modification of the Quebec Charter does not require the application of any particular rule and it can be done with a simple majority of the members of the National Assembly;

- The rule of stare decisis means that the Ford judgment [9] must be applied. Consequently, the use of exemption clauses by the legislator is legally unassailable;

-   The use by the legislator of the exemption clauses appears excessive, because too broad, although legally unassailable in the current state of the law;

-   The exercise of judicial discretion militates in favor of the refusal of the request for a declaratory judgment which is based on a hitherto unprecedented interpretation of the terms of section 33 of the Canadian Charter of Rights and Freedoms [10] ;

-    The Article 28 of the Charter, which guarantees equal rights for both sexes, does not have a scope other than interpretative and it does not invalidate the autonomous laws;

-    The combination of the effect of the first paragraph of Article 8 of Law 21 and of the first paragraph of its Schedule III violates Article 3 of the Canadian Charter, and in the absence of any proof or demonstration by virtue of Article 1 of the Charter, it follows a declaration of the inoperative character of the first paragraph of Schedule III of Law 21 [further to] ... Article 52 of the Charter ;

-   The first paragraph of article 4, articles 6 , 7 , 8 , 10 , the first and the second paragraph of article 12, articles 13, 14 and 16 read in conjunction with paragraph 7 of the annex I, paragraph 10 of Schedule II and paragraph 4 of Schedule III of Law 21 violate Article 23 of the Canadian Charter , as interpreted by the Supreme Court of Canada, which provides guarantees for public educational institutions for linguistic minorities;

-     The defenders of Bill 21 fail to shirk the burden of showing that these are violations which can be justified under s. 1 of the Charter ;

-      The Article 52 of the Charter entails a declaration of ineffectiveness of these products for the benefit of any person or entity who may enjoy the guarantees provided for in Article 23 of that Charter .

[One party claimed that the notwithstanding clause was not properly invoked, the Court says no, and that review of the use of section 33 by a province requires only a formal rather substantive inquiry, further to the earlier Ford case of the Supreme Court of Canada.]

[Unofficial translation]  [ 750 ]      From all this, the Tribunal concludes that the Ford judgment disposes of this question and that the rule of stare decisis is required. Neither does the proceeding pose a new legal question on this matter, nor does there currently exist a factual context which militates in favor of a re-determination of this question. In addition, the recent decision in Ontario (Attorney General) v. G . [533] emphasizes that section 33 allows the legislator to temporarily exempt a law from the application of the rights and freedoms guaranteed by sections 2 and 7 to 15 of the Charter, even for purely political reasons [534] .

[Unofficial translation] [ 784 ]      For the foregoing reasons, the plaintiffs clearly can not succeed since the use of section 33 sterilizes the use of the relevant provisions of the Charter .

[On the question of whether the court can declare, but for s. 33, Bill 21 would have infringed section 2 and section 15 of the Charter, the Court declines to make sure a declaration.]

[Unofficial Translation] [785] The FAE seeks to obtain a declaratory judgment that the provisions of Bill 21 infringe articles 2 and 15 of the Canadian Charter and articles 3 and 10 of the Quebec Charter despite the use of derogatory clauses by the legislature. According to her, this request and the resulting judgment would make it possible to draw the attention of the members of the National Assembly and the population of Quebec to the nature of the rights and freedoms violated so that they can react accordingly by means of the democratic process at the end of the five - year period provided for in section 33 (3) of the Canadian Charter .

[ 786 ]      The Article 33 of the Charter states:

33. (1) The Parliament or the legislature of a province may pass an act in which it is expressly declared that the statute or a provision thereof has effect independently of a particular provision of section 2 or sections 7 to 15 of this charter.

(2) Any law or provision declared in accordance with this section and in force has the effect that it would have except the relevant provision of the charter.

(3) A declaration referred to in subsection (1) ceases to have effect on the date specified therein or, at the latest, five years after it comes into force.

(4) Parliament or a legislature may re-adopt a declaration referred to in subsection (1).

(5) Subsection (3) applies to any declaration made under subsection (4).

[ 787 ]      Lauzon invites the Tribunal to declare that Bill 21 infringes on freedom of conscience and religion, freedom of expression and the right to equality guaranteed by the Canadian and Quebec charters in a manner that does not is not justified in the framework of a free and democratic society because the use of the notwithstanding clauses allows only that one does not give effect to a law which infringes a protected right. According to her, the wording of Articles 33 of the Charter and 52 of the Quebec Charter, as well as the inherent jurisdiction of the Superior Courts and their duties to interpret laws, including those which are the subject of a notwithstanding clause, as well as article 24(1) of the Charter authorize the Court to grant the declaratory judgment sought.

[Unofficial translation] [ 796 ]      The Tribunal exercises its judicial discretion not to act on such a request.

[ 797 ]    First, because the question asked turns out to be theoretical since it aims to circumvent the factual context existing to date to suggest a hypothetical one, which is based on the absence of the use of the exemption clauses by the legislator.

[ 798 ]    Second, and more importantly, because although apparently some meaning must be given to the words used in section 33 which only speaks of the effect of the use of the notwithstanding clause, although this would not exclude an application for a declaratory judgment, the fact remains that having such a debate constitutes an indirect way of doing something that cannot be done directly.

[ 799 ]     With respect, although rights and freedoms are a subject of the utmost importance, we must avoid mortgaging a judicial system already sufficiently busy with remedies that do not lead to a concrete result.

[ 800 ]     This is why the Tribunal rejects this request.

[On the independent operation of section 28 of the Charter guaranteeing the rights equally to male and female, which lies (like section 23) outside the scope of the section 33 over-ride, the Court says 'no']

[Unofficial translation] [ 875 ]     With respect, to the extent that the Quebec legislature decides to avail itself of the notwithstanding clause, provided for in section 33 of the Charter, it is thus suspending recourse to the rights and freedoms that it seeks by this clause ...[?]. Thus, there are no longer any rights or freedoms to be guaranteed equally to persons of both sexes as provided for in article 28. The fact that the latter is not subject to the derogation clause does not change this legal reality.

[ 876 ]      Said another way, even taking for granted that Law 21 has effects that prevent women, and especially Muslim women, which the record allows to conclude on the preponderance of the evidence, in the field of education only to exercise their freedom of religion and violates Article 15 of the Charter, the use of the notwithstanding clause prevents any recourse to Article 28 to circumvent the effects of its application contained in paragraphs 33 and 34 of the Charter [in] Law 21.

[Regarding the requirement in Bill 21 for member of the legislative assembly to have uncovered faces, the Court finds this contrary to section 3 of the Charter, which, significantly, is not a section of the Charter that the notwithstanding clause covers.]

[Unofficial translation] [ 909 ]      Thus, the combined effect of the first paragraph of Schedule III and the first paragraph of section 8 of Law 21 violates section 3 of the Charter. The Tribunal must therefore declare this consequence invalid under section 52 of the Charter. 

[Unofficial translation] [921 ]      As the [Attorney General of Quebec]  does not present any proof or demonstration under Article 1 of the Canadian Charter, the Tribunal must therefore declare that the combined effect of the first paragraph of Article 8 of Law 21 and of the first paragraph of Schedule III of Bill 21 violates section 3 of the Canadian Charter in an unjustifiable manner and it must declare this first paragraph of Schedule III of Bill 21 inoperative according to section 52 of the Charter .

[Regarding the section 23 Charter protection of minority language education rights, which, again, are not possible of notwithstanding over-ride, the Court finds Bill 21 does infringe.]

[Unofficial Translation] [ 1001 ]   Thus, the Court accepts from the evidence that the presence of cultural diversity, and therefore for the sake of precision religious diversity leads to an improvement in the academic performance, perceptions and academic engagement of students from such minorities, as well as their social and emotional development [713] . It also appears that this presence improves the teacher-student relationship since these mechanisms are shared by all minority groups and in this respect the visual representation of this identity appears essential to set this mechanism in motion [714] .

[ 1002 ]   The expert Dee opines that the absence of diversity among teachers, and particularly the absence of a visual referent to mark a certain identity will in all probability lead to an opposite dynamic [715] with regard to the pupils from minorities, but also that this will have negative consequences for students of the majority. It states:

65. […] reduced diversity is likely to increase prejudice among majority students by reducing their "intergroup" contact with teachers wearing visible religious symbols (Carver-Thomas, 2018). Both psychological and neuroscientific studies (Chekroud et al., 2014; Cloutier et al., 2014; Devine et al., 2012; Pettigrew et al., 2011; Pettigrew & Tropp, 2006; Telzer et al., 2013) present empirical findings that such intergroup contact is highly effective in reducing prejudicial attitudes. [716]

[ 1003 ]   The Tribunal therefore concludes that there is no doubt that the first paragraph of article 4, articles 6, 7, 8, 10, the first and second paragraphs of article 12, articles 13, 14 and 16 read in conjunction with paragraph 7 of Schedule I, paragraph 10 of Schedule II and paragraph 4 of Schedule III of Law 21 violate Article 23 of the Charter .

[AG for Quebec declines to argue this infringement is justified under section 1 of the Charter, but some intervenors do make the section 1 argument. The Court decides to carry out the section 1 analysis anyway, but finds the infringements on section 23 (minority language rights) are not justified.]

[Unofficial translation] [ 1109 ]   The Court concludes that the defenders of Bill 21 do not discharge their burden of demonstrating by a convincing demonstration, which can be based on a preponderant proof, that the prohibition of the wearing of religious symbols contributes to the neutrality of the state in its formal sense.

[ 1110 ]   Therefore, it follows that the detrimental effects of Law 21 contained in the first paragraph of article 4, in articles 6, 7, 8, 10 , in the first and in the second paragraph of article 12, in Articles 13, 14 and 16 read in conjunction with paragraph 7 of Annex I, paragraph 10 of Annex II and paragraph 4 of Annex III do not prove to be proportionate and thus the infringement of section 23 of the Charter cannot be justified under s. 1.

[So there is a mixed outcome. On the central question, whether Bill 21 infringes on section 2 - the religious freedom provision - of the Charter of Rights and Freedoms, the Court will not even embark on the discussion given the formal invoking of the notwithstanding clause (section 33) of the Charter by the Quebec legislature. Where section 33 can't apply, in regard to section 23 minority language rights, the Court finds that that the law does infringe those rights and was not an infringement that could be justified further to section 1 of the Charter. ]

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The Superior Court verdict has been appealed to the Quebec Court of Appeal by those opposed to the English language school boards being free to hire who they want, including the province of Quebec. In Quebec, the standard procedure (apparently) is for the mere filing of an appeal to act to stay the effect of the initial judgement (somewhat to the reverse of most jurisdictions in Canada). The English language school boards applied requesting a variation to normal procedure in order to allow the original decision to go into full force (nullifying Bill 21 as far as English language school boards are concerned) so that they could hire some hijab wearing school teachers, as they are short of teachers. The Quebec Court of Appeal declined to allow that and the standard stay upon appeal has gone into effect. 

The government of Canada has apparently not sought to intervene on the appeal. ("Sunny ways, my friends. Sunny ways.")

Here is the link to the court of appeal judgment on the preliminary matter. The actual appeal would likely be heard in the Spring-Summer of 2022, I would guess. 

https://www.canlii.org/fr/qc/qcca/doc/2021/2021qcca1675/2021qcca1675.html