Bill Morneau and The Necessity of the Continued Evolution of Canadian Federalism

In the salty sea of politics in which most of us merely bob and tumble, political leaders swim like sharks. And that is fine. But to be the lead shark one must be able to kill and feed the other sharks. Prime Minister Justin Trudeau is, by that measure, doing fine. And will dominate his party until - you know it - the likely far-off day comes when it is his blood that is in the water.  And Bill Morneau's book to be published this month (January 2023) is unlikely to cause Mr. Trudeau any mortal injury, although it does join other books in painting a particularly unflattering portrait of Mr. Trudeau and the prime minister's office. But no matter: as long as he continues to win, Mr. Trudeau can shrug all this off without any particular problem. 

But that doesn't mean that those of us who merely bob and tumble should ignore what  Bill Morneau has to say. Not at all. And those of us who are not political sharks owe it to the country to give some thought to what Mr. Morneau has to say. Public opinion is, after all, what creates the aquatic world of electoral politics. 

As we turn to this task, we might start by taking note of a recent observation made by the CBC that the last Canadian Prime Minister to win four elections in a row was Laurier. Prime Minister Trudeau has a bust of Laurier in his office in Ottawa. Laurier was famous for the saying, "Sunny Ways," meaning attempt to persuade the provinces to be amenable of consitutional convention and minority rights by being nice, rather than by exercising federal political and constitutional muscle. 

On election night in 2015, Justin Trudeau said several times, looking out over the adoring crowd and television lights, "Sunny Ways, my friends. Sunny Ways."

Back to Morneau.

According to Paul Wells, in his book, Morneau: 

[m]ostly ... argues for a different style of government in pursuit of longer-term strategic goals instead of short-term popularity. His preferred governing style would be more collegial within the cabinet, more open to dissent, more focussed on a smaller number of priorities, and more consultative with provincial and territorial governments.

Leaving aside the first several points, which seem perfectly sound to me but are prone to remain a bit vague (is there any reliable measure for being collegial around the cabinet table and, more importantly, how would we know?), the last issue is surely the key: "... more consultation with the provincial and territorial governments."  Wells also remarked on CBC Radio's The House today (Jan 14, 2023) that, in Morneau's view, one of the main problems with how things are done in Canada that is negatively affecting our long-term economic health is the inability of our political structures to approve large development projects. 

My thought is this is. Morneau, without using the word, is bring up federalism and, in particular, federalism as it impacts natural resource development. And kudos to him for doing so. There are many moving parts of the Canadian economy and society, but natural resource development is the key. Has been for hundreds of years. Will continue to be for the foreseeable future.

But, as I see it, Morneau is dead wrong in regard to his prescription for how to fix what he sees as the problem.

From my perspective, what is needed, firstly, is more federal assertiveness. Unless there is some federal presence, some federal unilateral action (real or contemplated), federalism in Canada risks descending into repeated and bizarre provincial demands for more and more blank cheques. Cooperative federalism is fine, but if the dynamic is to work it needs to include a strong federal backbone. This is particularly so in this disgusting era when destroying the Canadian Charter of Rights and Freedoms is now a right of passage for populist provincial politicians.  And should the federal governments response to that continue to be, as it has been since 2015, "Sunny Ways, my friends. Sunny Ways?"  

It also needs to be said that there is always a federal interest in overall economic development and environmental and climate protection of the country. The country as a whole. Provincial ownership of natural resources does not change that. Assuming, for the moment, that provincial governments (the Crown in right of a province) actually owns natural resources, or owns them free of any indigenous interest. 

And that is the second way that Mr. Morneau misses the mark. Cooperative federalism must evolve not by increasingly placating simplistic and repulsive provincial politicians (God forbid!), but by embracing full Indigenous participation in the Canadian governmental structure. That is the way, the only way, that the true purpose of the section 35 of the Constitution Act, 1982, can be fulfilled and lived out as a reality. It is also the only way - and I think this would be obvious to anyone who gives a moments thought to the matter -  that some sort of certainty can be brought to the area of the approval within the federal Canadian governmental context of large scale natural resource development. Cooperative Canadian federalism incorporating a profound Indigenous interest and role is the only alternative to ever more costly, time consuming, and ultimately unproductive litigation over constitutional rights arising out of every major natural resource development in Canada.

Kick the provinces to the curb, open the door to Indigenous participation, and lets get on with the future.  

A New Constitutional Convention Regarding the Notwithstanding Clause

Professor Alex Colangelo has recently suggested that the federal power of disallowance be used in a phased way in regard to provincial legislation relying on the notwithstanding clause. The federal government, he suggests, should announce that it will use the disallowance power where any provincial legislature uses the notwithstanding clause preemptively - that is, before any court has ruled that the provincial legislation infringes on protected Charter rights, rather than afterwards. 

Professor Colangelo's proposal has a second part. The federal government would announce - at the same time - that it would not use the federal disallowance power to void any use of the notwithstanding by a provincial legislature which is done in response to a judicial declaration of consitutional invalidity of some part of a provincial statute. 

I support Professor Colangelo's proposal. This post will try and explain why I do and why I believe others should also support it. 

Background 

The Constitution of Canada was amended in 1982. It now includes an amending formula (without reference to the UK) and a Charter of Rights and Freedoms. Section 35 of the Constitution Act, 1982 provides the recognition and affirmation of aboriginal rights. 

The introduction of a Charter of Rights and Freedoms was a significant structural change to the Canadian constitution, authorizing and demanding a much greater role for the Canadian judiciary as regards the judicial review of federal and provincial legislation for compliance with constitutional requirements. In the fraught political negotiations between the provinces and the federal government in 1981, great concern was expressed by the provinces regarding the dangers of the greater role of judicial review. Well founded or not, those concerns eventually led to the inclusion of a notwithstanding (or over-ride) clause in the final agreed-to package that was approved by the UK parliament in 1982. 

The notwithstanding clause is section 33 of the Constitution Act, 1982. It provides:

Exception where express declaration

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.

Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. 

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Two things of note. Section 33 only allows for the over-ride of certain parts of the Charter. It also does not provide an override regarding the aboriginal rights found in section 35.

Section 90 of the Constitution Act, 1867, provides to the federal government of Canada the ability to disallow provincial legislation.  This provision was last used in the 1940s. There is some debate about the legitimacy of the section 90 power, particularly as it regards the modern conception of Canadian federalism being an interaction between equals. But the section 90 power existed in 1981 and still exists today. The Charlottetown Accord in the 1990s provided for the removal of section 90, but, of course, the Charlottetown Accord failed. The fact that the provinces sought to bargain for the removal of the section 90 disallowance power in the Charlottetown Accord is evidence that the power is still valid and capable of use. 

The Legitimacy of the Notwithstanding Clause

For many people, such as myself, the notwithstanding clause ("NWC") is, on its face, not legitimate. Minority rights, people such as myself say, need protection from the sometimes intolerant majority - that is the entire point of providing for judicial review on the issue of legislative compliance with a Charter of Rights.  And it may be at times very popular with the majority in a province to infringe on the rights and freedoms of an unpopular minority. And the NWC provides just such a mechanism for a provincial government to make political use of such a situation. But the NWC exists and it does need to be given some respect and some meaning, as it was a key part of the constitutional settlement of 1981, and it is in the text of the Constitution Act, 1982. 

I would pause here to say that the very same sorts of things can be said of section 90, the federal disallowance power. It, too, exists and must be given some respect and some meaning - some role. We will come back to that idea. 

The notwithstanding clause has not been used by the federal parliament in the years since 1982. It has been used a number of times by provincial legislatures. A significant issue has arisen, recently expressly recognized by the federal government (see below ***) about how it is being used. 

The Problem of Preemptive Sterilization 

In 1980-81, the need for the NWC, the need for an over-ride, was usually framed as providing a way for legislatures to respond to "activist judges" who went off on a tangent. This strongly suggests that the corrective power provided by any NWC was to be used after such a unsupportable and bizarre judicial judgement. But that this not how it is being used. The NWC wording - that is, reference to all the Charter provision it might possibly affect - is being placed into legislation from the beginning. Thus it is being used to prevent judicial review, not to respond to it. 

Criticism on this point could go on for pages, but, for the sake of brevity, this preemptive use of the NWC presents at least two problems. 

First, the NWC covers a wide range of rights on very different areas. So using it preemptively to sterilize judicial review on a wide range of topics right from the start would allow for the gratuitous infringement of rights not connected to the purpose of the legislation at all. That is to say, used preemptively, it is an extremely blunt instrument that may well allow for more infringement than intended or even necessary. 

Secondly, by using the NWC before judicial review of legislation, and not afterwards, the provincial government is removing the ability of claimants to make arguments and submissions as to why the provincial legislation infringes on their Charter rights (at least those specific rights listed in section 33). It removes the need for the provincial government to bring forward facts and arguments that support why their legislation is justified, even in the context of some degree of infringement of Charter rights. And it removes the ability of the independent judiciary to evaluate those various arguments and provide a principled decision on the matter.  I hasten to add, the Courts may - and often do - agree with governments that infringements of Charter rights can be justified. 

The Benefits of the New Colangelo Convention - Section 33, Section 1, and Section 90 Working Together - No Preemptive Use of the NWC

Section 1 of the Constitution Act, 1982 provides for the process of adjudicating the justification of legislation that seemingly intrudes on protected Charter rights. It is in this arena where the great bulk of Charter litigation is decided. To my mind, the greatest downfall of the preemptive use of the NWC is that it short-circuits the section 1 justification argument. To be clear, governments win more of those argument than they lose in the context of section 1. 

So creating a new constitutional convention - that the provinces will not use the NWC preemptively and the federal government will not disallow any use of the NWC by a provincial legislature in response to a judicial declaration of invalidity of provincial legislation - would be a very good thing. The benefits of this approach are both significant and numerous:

-  section 1 of the Charter, section 33 of the Charter, and section 90 of the Constitution Act would all be given a role and recognition. They would work together, in balance and in harmony. This, in my view, would be a sterling example of cooperative federalism, true to the best and most progressive understandings of our constitutional architecture. 

-  the province might well win all of the arguments on section 1 justification and never need to use the NWC at all!

-  under the proposed convention, the provincial legislature does get the last word, which respects the fundamental nature of the 1981 agreement on the need for an over-ride power (not a sterilization power)

-  if the provincial legislature does need to use the NWC, it can use it extremely narrowly, to meet the precise and considered judgment of the courts. That is, of course, if those specific infringements are truly necessary to meet the important purpose of the legislation. In any event, the danger of accidental or incidental infringement on rights is completely removed.

-  the requirement for the province to publicly explain and defend the infringement of rights it is undertaking - the prime rationale advanced again and again in 1980-81 as to why the NWC would be used sparingly and why, therefore, it was a legitimate tool - would finally get its proper role. And also, I might add, it would get its proper profile when the precise infringements have to be defended in the legislature and in the public sphere by individual legislators as the supplementary legislation is advanced in response to a negative judicial decision. 

-  Indeed, the outcome might well be amendments to the provincial legislation to make it conform to the court judgment, rather than over-riding it, if that can be done (and this is commonplace) without impacting the central purpose of the legislation. In fact, I think this is the most likely outcome if provinces are required by this convention to undergo the initial review of their legislation on Charter grounds rather than rely on the NWC preemptively. How could this type of arrangement not be welcomed by all Canadians supporting the rule of law and the rights of individuals? 

-  complainants would, literally, get their day in court, but, as mentioned, the provincial legislatures will have the final word, after they have been forced to justify the infringement of protected rights. 

For all these reasons, I strongly support what Professor Colangelo has proposed. 

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*** From a CBC report dated May 25, 2022  https://www.cbc.ca/news/canada/montreal/bill-96-federal-response-justice-minister-legault-1.6465090

David Lametti weighed in on Quebec's new language law, Bill 96, which was adopted into law on Tuesday, and he said he would not rule out Ottawa taking part in a legal challenge against it.

"We will keep all options on the table," he said. "We won't eliminate the possibility of joining court challenges where we feel it is necessary to protect the constitutional rights of Canadians."

The sweeping new language law is large in scope.

It limits the use of English in the courts and public services and imposes tougher language requirements on small businesses and municipalities. It also caps the number of students who can attend English-language CEGEPs, which are junior colleges, and increases the number of French courses students at that level must take.

Lametti said he was concerned about the law's potential effects on immigrants, access to justice and health care in both French and English as well as Indigenous rights.

He also criticized Quebec's pre-emptive use of the notwithstanding clause which essentially protects Bill 96 from legal challenges based on the Canadian Charter of Rights and Freedoms. Quebec also used the notwithstanding clause for its controversial religious symbols law — also known as Bill 21.

"I recall those debates when the Constitution came into force and the notwithstanding clause was meant to be the last word," Lametti said when meeting reporters on Wednesday morning.

"It wasn't meant to be the first word." [bolding added]

Refining the Proposal to Use Section 90 Disallowance Power for Provincial Laws relying on Notwithstanding Clause

Regarding the Constitution of Canada. 

The purpose of this post is to endorse an idea regarding the use of the existing section 90, Constitution Act, 1867, federal authority to disallow provincial legislation that seeks to rely on the Notwithstanding Clause (section 33, Constitution Act, 1982; the "NWC") to protect provincial legislation from judicial review in regard to significant portions of the Charter of Rights and Freedoms (sections 1-34 of the Constitution Act, 1982; "the Charter"). My position previously (as one can see on prior posts to this blog) was to disallow any and all provincial use of NWC, period. While I thought - and continue to think - that such a proposal was entirely within a principled approach to the interpretation and development of the Canadian Constitution and Canadian federalism, this idea would be, to say the least, highly controversial and is not politically viable. So as much fun as I have been having saying this is the correct thing to do (and, actually, it is) it was a bit of pipe-dream. But maybe not so much anymore, given the variation on this approach recently expressed by Alex Colangelo, in a recent post on Twitter. Mr. Colangelo stated:

The federal government should announce that it will disallow any provincial legislation that preemptively invokes the Notwithstanding Clause. Forces provinces to justify the use of s. 33 in the face of a Supreme Court decision outlining how Charter are being infringed. [my italics]

I had to read Professor Colangelo's tweet two or three times to figure out what he was on about (to be clear: this is reflection on the word limits of Twitter, and not on Professor Colangelo). Now I see what he is getting at and he is making several very profound points. And, if followed, his approach would preserve the provincial use of the NWC, but subject it to much more judicial and, most importantly, public review. This is very much in line with how the NWC was rationalized in 1981 during the bargaining that led up to the 1982 patriation of the Canadian constitution. And, given that the provincial legislatures would have, eventually, the final say under this proposal, it can hardly be attacked on the grounds of federal over-reach. To understand why I say this it is necessary to talk a little bit about Charter litigation and, in particular, section 1 of the Charter, which states: 

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

As it has turned out in the last 30 years since the Charter went into effect, section 1 is the primary battleground for the process of judicial review of provincial (and federal) legislation on Charter compliance issues.  That is, it is usually fairly easy to find some sort of limitation on one or more of the many enumerated rights in the Charter (equality rights, mobility rights, etc. etc.) in most controversial legislation, and then the question boils down to this: is the legislation placing "reasonable limits" ... on the rights and freedoms of Canadians that "can be demonstratively justified in a free and democratic society," or is it failing that test?  

Once we get to section 1, the battleground in the courtroom is clear, the arguments go back and forth for all to see. From my point of view, the Supreme Court of Canada tends to favour the government position in regard to "demonstratively justified" far too often, to be, in other words, too deferential to parliament and the provincial legislatures. But at least - where the NWC is not invoked - the battle is there. The arguments are there. The data and research and so on is all there. And the government involved has been forced to justify any infringement on a Charter right. 

That is no small point. I think it is clear that the prospect of Charter litigation will significantly influence how provincial legislation is drafted, debated, and approved (or not). 

Now to get what Professor Colangelo is proposing. He says to use the federal section 90 disallowance power only when a provincial legislature uses the NWC "preemptively".  Just to pause here. There are in theory two ways to use the NWC power - preemptively, that is, to apply it to the legislation from the start, or, on the other hand, to use it after the fact: to use section 33 in a second piece to legislation ("supplementary") to declare and amend specific portions of the first Act so that they continue to have effect despite a judicial declaration that the specified portions of the legislation infringed certain charter rights and that those infringements could not be justified under section 1 of the Charter as a reasonable limitation. 

When the NWC is used preemptively - before any litigation is commenced - the courts of Canada will not carry out the Charter analysis, including the section 1 component when the legislation is challenged. (This was recently confirmed by the Quebec trial decision in the Hak case on Bill 21) To date, this is how provinces generally have used the NWC: using the full wording of the NWC and exempting review on a wide number of rights. Importantly, this might include removing rights that aren't even an impediment to attaining the goal of the purpose of the legislation. This is not how the political debate/negotiations in 1981 considered and defended the legitimacy of the NWC. 

This brings us nicely to the second key part of Professor Colangelo's proposal: the justification process (which was brought out again and again in 1981 as why the NWC would only be used sparingly; that is, that infringing protected rights would not be something any government would want to be seen doing). As I understand what Professor Colangelo is proposing, provincial legislation would be enacted without the inclusion of the NWC, but after the legislation had been through judicial review, and found to infringe in some way on one of the rights subject to the NWC over-ride, then the province could put to the legislature supplementary legislation that would be, one can only assume, tailored to meet the specific findings of the court about the specific rights that were infringed and the specific parts of the legislation doing the infringing. In the legislature, and in the broader public, the province would have to justify the actual infringement on rights. And, in this scheme of things, the federal government would not use the section 90 disallowance power on this supplementary and (hopefully) well tailored and proportional use of the NWC.

As the situation now exists, provinces face little or no need to justify the use of the NWC. They just use it as a blunt instrument early in the legislative process usually before there can be any well founded consideration of what rights are being infringed, whether there could be a better way to attain the legislative purpose that would eliminate or reduce the infringement of protected Charter rights, and so on. The provincial governments thereby avoid the great bulk of the actual issue.  If the NWC is used afterwards, after full judicial consideration and section 1 arguments (and, who knows, the province might have good section 1 arguments) then the specific rights and the specific impacts on individuals will have been identified, and the province would, in the debate on the supplemental legislation, have to actually justify why it is necessary to infringe the identified rights. If the NWC has to be used, then this is how it should be used: in a fully explored and carefully considered context, as a precise laser beam, not as a broad axe.

Also, the province might win the section 1 argument and not have to use the NWC at all. Or it might decide to simply amend the legislation so that it complies with what the courts have said. Both of these outcomes are highly preferable to simply preemptively using the NWC. 

Professor Colangelo's proposal should be given close consideration. 

Conjure

                  CONJURE

I conjure, I conjure, I conjure thee.

Not you but thee, 

and straining in my labours I saw a trace of river water in the ocean 

and called your name, or someone did, and the foam shape of your head

tilted to listen. 

But a wave crashed and sucked and crashed again
And the land shook like a drum like a storm 
I opened my mouth

But my tongue was your tongue 

And silent, silent, silent, thee. 

       CHRIST IN THE RAIN 



I was born Christ in the rain
You know, the low misty rain that eats the horizon
As male as the back of the pale, green leaf.

 

                LINES ON A LAST LOVE 

I see the water in the white stream bed.
The water running is a sound I have heard before.
Though the phone I hold is never answered,
I know upstream they bob,
caught in the snags
and battered in the falls and rapids
waiting for the release of putrefaction.
While downstream is the last sleepy ocean.
From the stream bank of safety I survey it all.

If I was brave enough to wet my legs again,
if I threw tobacco and tin into the death white foam,
would the colour of winter melt away one last time?

      I WAITED, WHILE WRITING 

I waited, while writing, not knowing you waited too, then tucked note book and all my thoughts of Glen Vine safely away, and, on the closed railway line, let my desire for you draw me gently up the steady, shaded incline. Gaining the familiar heights of your flat, I found your note there, seeing for the first time your hand-writing, spiked and sharp like the yellowed, mounted antlers of the Loughton Hare, but the sound of the inky words themselves was round, solid and dark. Hearing your feet on the stairs, wishing last minutes were not so fleet, I turned and saw you in the doorway, tight and controlled and small, the splattered, wet sunlight dripping on the floor at your feet. I stood as still as pain as you turned aside, then down the bedroom hall Your hair was pulled-back and severe, even as two fingers danced, and the purple sigh of ragged flesh turned to black and glistened

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) 

***********************************************************************

[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