Notwithstanding clause centre stage in Quebec Appeal Court ruling over controversial secularism law

Law360 Canada (March 11, 2024, 1:09 PM EDT) -- The Quebec Court of Appeal, handcuffed by the provincial government’s use of the notwithstanding clause, upheld a controversial secularism law that bans religious symbols from being worn by government employees, in a decision lauded by legal observers who endorse the so-called “parliamentary sovereignty clause” while bemoaned by others who deem it to be a “major retreat” from the fundamental principle of the rule of law.

The comprehensive decision, widely expected to eventually land before the nation’s highest court, examined a host of constitutional arguments unrelated to fundamental rights as well as arguments based on fundamental rights raised by civil liberties groups and the government appealing a 2021 Quebec Superior Court decision, and concluded that the Act respecting the laicity of the State (Act) does not “offend” Canada’s constitutional architecture or the unwritten principles of the Constitution, and nor does it “offend” any pre-Confederation statute or principle having constitutional status.

Unlike Quebec Superior Court Justice Marc-André Blanchard who found that Bill 21 disproportionately harms women, particularly Muslim women, the Appeal Court held that it is not empowered to rule on whether the Act infringes the freedoms of religion and expression or the right to equality guaranteed by the Canadian or Quebec charters because of the notwithstanding clause and the doctrine of mootness. The Appeal Court however overturned the lower court’s finding that English school boards are protected under the Constitution’s minority language rights and therefore exempt from Bill 21. But it upheld the trial judge’s finding that members of the province’s National Assembly cannot be forced to exercise their functions with their face uncovered as it infringes the right to be qualified for membership in a legislative assembly, as guaranteed by s. 3 of the Canadian Charter.

The Quebec government is elated with the decision, with Premier François Legault, who recently disdained the Quebec Appeal Court for being judges “named by the federal government,” describing the ruling as “a great victory for the nation of Quebec.” Quebec Justice Minister Simon Jolin-Barrette and French Language Minister Jean-François Roberge even went so far as to pen an opinion piece this week that echoed those sentiments, adding that the “Court recognizes the sovereignty of our Parliament in matters relating to the secular nature of the State.”

But how one views the decision hinges on which fundamental principles are used to analyze it, noted Stéphane Beaulac, a constitutional law professor at the Université de Montréal and counsel at Dentons. “If we analyze the issues raised by Bill 21 in terms of sovereignty and parliamentary supremacy, the autonomy of the Quebec National Assembly, it is a great legal victory because, ultimately, the decision recognizes (almost entirely) the validity of Quebec's legislative choice in its Bill 21,” said Beaulac. But “this is not a great victory at all, but rather a major setback for another fundamental principle of our constitutional order, and that is the fundamental principle of the rule of law. In Canada, as in the vast majority of liberal democracies around the world, the rule of law includes elements that protect fundamental freedoms.”

Benoît Pelletier, a University of Ottawa constitutional law professor who served as a cabinet minister with the Quebec government, asserts that the decision legitimizes and “enshrines” the notwithstanding clauses in the charters, s. 33 of the Canadian Charter and s. 52 of the Quebec Charter, which give legislatures the power to override certain provisions of those very charters for up to five years at a time. “On the one hand, I understand that people are worried, but I have to tell you that I think it’s perfectly normal that in certain cases the final say should rest with the legislators rather than with the courts,” particularly on issues relating to Quebec’s identity, said Pelletier.

Pelletier’s colleague, Errol Mendes, a constitutional and human rights law professor at the University of Ottawa, views the ruling as potentially being the onset of a “slow and painful death” of the Canadian Charter, particularly if followed by courts in courts in Ontario and western Quebec with the pre-emptive use of s. 33. During the past seven years, the notwithstanding clause has been invoked or threatened nine times. “When the court essentially said ‘sovereignty of the legislature’ prevails over all else, including disregarding a clear violation of the most important equality rights, very little is left of the Charter,” remarked Mendes.

Montreal human rights lawyer Julius Grey, while acknowledging that the Appeal Court’s take of the notwithstanding clause was not surprising given existing jurisprudence, nevertheless describes it as an “unfortunate result” that confirms “forever” the theory that provincial governments can use s. 33 “as it pleases,” unless the Supreme Court overturns the ruling.

Bill 21, passed and assented in June 2019, bars some provincial public servants in positions of authority, including judges, lawyers, notaries, police officers and teachers, from wearing religious symbols. From the get-go, the law was denounced by critics as an anti-immigrant bill that overrides fundamental minority rights, shielded by by s .33 of the Charter. The bill was almost immediately challenged.

Superior Court Justice Blanchard rebuffed most of the challenges, either related to or unrelated to fundamental rights, and confirmed the validity of the Act, with the exception of certain provisions he declared to be of no force or effect. Justice Blanchard chastised the provincial government for its “excessive” and overly “broad” use of the notwithstanding clause, found that Bill 21 infringes fundamental rights to religious expression under both charters, particularly Muslim women, holding that it is “cruel and dehumanizing,” and declared that the law could not apply to English school boards because it violates minority language education rights, protected under s. 23 of the Canadian Charter.

The Appeal Court, after hearing arguments raised by eight appeals, four incidental appeals and four interventions that largely echoed the debate at trial, upheld the contentious secularism law but quashed the trial judge’s exemption of English school boards from the law. In a per curium 267-page decision, the Appeal Court made it plain that it was bound by the Supreme Court’s ruling in Ford v. Quebec (Attorney General), [1988] 2 S.C.R.712, a ruling that “still has precedential value.”

“In Ford, the Supreme Court expressly ruled out any need for the legislature to justify the decision to exercise its override authority, finding that the use of s. 33 requires nothing more than compliance with requirements of form,” said the three-judge panel, composed of Justices Manon Savard, Yves-Marie Morissette and Marie-France Bich, in Organisation mondiale sikhe du Canada c. Procureur général du Québec, 2024 QCCA 254, issued on February 29.

Courts, added the Appeal Court, cannot require legislatures to explain or justify the appropriateness of the legislative policy behind the exercise of the override power. Nor can they require legislatures to demonstrate the existence of a link or relationship between the overriding statute and the guaranteed rights or freedoms being overridden, said the Appeal Court.

The Appeal Court demurred, to the disappointment of appellants, from formally ruling on whether Bill 21 infringes the freedoms of religion and expression or the right to equality guaranteed by the charters. The notwithstanding clause, explained the Appeal Court, exempts it from judicial review of the law’s constitutionality.

“The thing that struck me the most is that the Appeal Court really put a limit around what it thinks it can do in terms of the notwithstanding clause,” said Marion Sandilands, an Ottawa lawyer with Conway Baxter Wilson LLP who represented the Quebec English School Boards Association, intervenors in the case. “It was asked to do a number of things to either get around the notwithstanding clause or review its use, or, for example, make declarations on the rights that were subject to the notwithstanding clause. And it refused to do any of that. It said that the notwithstanding clause precludes any court review of the rights, and it said it provides no remedy available for the rights that have been notwithstood. That’s an area where I think there’s debate about whether Ford actually says that. So that really stood out to me.”

Grey, who represented the Canadian Human Rights Commission and the Quebec Community Groups Network in the case, said that the Appeal Court could have been more adventurous, and at least make it clear to Quebecers that Bill 21 violates the charters. “You could argue that that is simply part of the doctrine of mootness or the doctrine of restraint, not deciding constitutional issues that don’t have to be decided,” said Grey. “But at the same time, you have to ask yourself, would it have been useful in terms of explaining Canada’s constitution to make it clear that it’s a notwithstanding clause and not some sort of constitutional right for Quebec to legislate this outside the notwithstanding clause.”

Some legal observers think it’s time for the Supreme Court to revisit the Ford decision, something that the Appeal Court declined to do. The bar is high, noted the Appeal Court, and the appellants did not not meet in this case the test set out by the Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72, that is, raise a new legal issue or demonstrate there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” to be able to apply an exception to the stare decisis rule. It’s tough to overrule a precedent, said Beaulac, but it has been done in the past. The Supreme Court did it in the seminal case in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 and in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245.

“I would put all my energy into testing the Ford ruling because that’s the only way, in the end, to convince the highest court in the land to revisit the (Quebec Appeal Court) ruling,” said Beaulac. One of the ways to persuade the Supreme Court to review Ford, added Beaulac, could be by satisfying the first part of the Bedford test and raise a new legal issue in connection with international law, and the international obligations assumed by Canada that should be applied when interpreting the notwithstanding clause. In his view, there have been major developments in case law subsequent to Ford that give greater prominence to the “influence of international law” towards the interpretation of the Canadian Charter. In Nevsun Resources Ltd.v.Araya, 2020 SCC 5, [2020] 1 S.C.R. 166, the Supreme Court confirmed the “considerable usefulness” of customary international law, which is one of the two main formal sources of international law, said Beaulac. In the same year, in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, the Supreme Court overturned a Quebec Appeal Court decision and held s. 12 of the Canadian Charter does not protect corporations from cruel and unusual treatment or punishment, a judgment the Supreme Court used to clarify the role that conventional international law and international treaties can play. Beaulac notes that the International Covenant on Civil and Political Rights has an override provision that requires justification and that can only be used for emergency purposes. “Using international treaty law would make it possible to draw parallels to justify the inclusion of substantive conditions and to revisit Ford,” said Beaulac.

Frédéric Bérard, a counsel with Gattuso Bouchard Mazzone who co-represented Fédération autonome de l’enseignement, a teacher’s union, in the case, said that he is confident that the Supreme Court will consider evidence relating to the “new social and political” context that will prompt it to review Ford. “As the aim is to overturn a Supreme Court precedent on the use of the notwithstanding clause, namely the Ford decision, we have been aware from the outset that the court’s intervention will be necessary to achieve this,” said Bérard.

But Pelletier does not believe the Ford decision should be revisited. Section 33, Pelletier maintains, is a very clear provision whose purpose is to assert parliamentary sovereignty “in the context of a constitutional charter.” On top of that, the notwithstanding clause applies only to a few provisions of the Canadian Charter, pointed out Pelletier. The notwithstanding clause arose out of a political compromise, reminded Pelletier, and “the Supreme Court of Canada must not usurp the role of the constituent.”

The Quebec Appeal Court’s finding that English school boards are not exempt from Bill 21 too has spurred much legal debate, particularly over the reach of s. 23 of the Canadian Charter. Section 23, which establishes a regime for primary and secondary education to protect Canada’s two official languages where these languages are in the minority, “serves as a bulwark against their own decline,” noted the Appeal Court.

Superior Court Justice Blanchard concluded Bill 21 interfered with a “cultural perspective specific to English-language public educational institutions, namely the promotion and celebration of religious diversity,” a finding overturned by the Appeal Court who found that the trial judge gave s. 23 a scope it does not have. “If s. 23 aims to preserve and promote minority English-speaking and French-speaking cultures, it can only be through the medium of language itself, and under the conditions laid down in this provision,” held the Appeal Court. “In other words, s. 23 protects the linguistic dimension of culture, but not all cultural manifestations of the linguistic minority.”

Nothing in Bill 21 has any impact “whatsoever” on the use of the English language in schools, and nor does anything curtail its “unrestricted use” in a schooling context, held the Appeal Court. “Rather, what is at stake here is a restriction on recruitment practices, which in no way pertains to linguistic considerations,” added the Appeal Court.

Sandilands believes that the Appeal Court took a more narrow reading of s. 23 than they needed to make, particularly since the Supreme Court has given it a broad interpretation. “It’s been interpreted to provide a right for the minority language community to manage and control all matters pertaining to language and culture,” said Sandilands. The Appeal Court however “seems to go back to a textual reading of s. 23 and say that s. 23 just protects the language of instruction, which I think is inconsistent with the line of Supreme Court jurisprudence on s. 23.”

Pelletier, though surprised by the Appeal Court’s take on s. 23 and its “strict” interpretation of culture, said it is far from obvious to assert that freedom of religion is among the rights that flow from school governance. “The opposite would mean that religious aspects would be part of school management, of the constitutional rights to school management, of Quebec’s English-language school boards,” said Pelletier. “I must admit that this too is not an obvious conclusion.”

Over the past 20 years, it’s clear that the provisions of the Canadian Charter have been interpreted broadly and liberally, including s. 23, but “there are limits,” said Beaulac. The Appeal Court serves a timely reminder that the objective behind s. 23 is to protect the control and management rights of English-speaking minorities in Quebec, and to address concerns related to the “linguistic dimension” of English, said Beaulac. “It’s not about choices in relation to other dimensions, which are all important in the school environment, such as diversity,” said Beaulac. “But diversity is not intrinsically linked to one language or another. Canada’s official language, French or English. So, really, the linguistic dimension must be at the heart of what justifies the application of Section 23, which, in the Court of Appeal’s view, was not the case with the restrictions imposed by Bill 21.”

While the debate over the Appeal Court ruling is not likely going to taper off, all legal observers agree that the Supreme Court will almost certainly hear the case.