On Tuesday, November 7, 2017, Muslim groups and civil liberty advocates launched the constitutional challenge we all knew was coming. Last week, I and many others predicted that Bill 62 would be headed straight for the courts on grounds that it violates the freedoms guaranteed in Canada’s constitution and Quebec’s Charter of Human Rights.
I’m not going to go over the details of Bill 62 as I did that last week. Instead, let’s talk about the legal challenge.
The plaintiffs in the constitutional challenge say in their court filing that:
“Such blatant and unjustified violations of freedom of religion, as well as of the quality guarantees of the Quebec and Canadian charters, have no place in Quebec or Canada,” and that this cannot be justified in a free and democratic society.
The plaintiffs include the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and Warda Naili (formerly Marie-Michelle Lacoste), a convert to Islam who has chosen to wear the niqab as an expression of her faith.
The CBC spoke to some women who wear the niqab, something the Couillard government failed to do before passing Bill 62. For the most part they claim they have no issue showing their faces for identification and medical purposes, but that the law’s insistence that they show their faces regularly is not only humiliating them and forcing them to act in violation of their faith, but has also exacerbated the harassment they’ve experienced due to their beliefs.
The law, it seems, has sent the message to the most bigoted repulsive members of Quebec society that harassing a woman for how she dresses is perfectly ok. All you have to do is claim religious neutrality and secularism.
The motion filed in Superior Court on behalf of the aforementioned groups comes despite claims by Premier Philippe Couillard that Bill 62 was written to ensure its compliance with the Canadian and Quebec Charters. Quebec Justice Minister Stéphanie Vallée is also on the defensive, claiming the law only applies where uncovering one’s face is needed for communication, identification, or security. She’s said she believes the law will survive a constitutional challenge, though her confidence about this seems forced.
Other leaders in Quebec, including former Montreal Mayor Denis Coderre, newly elected mayor Valérie Plante, and the Quebec Association of municipalities have all come out against the law with one exception.
In a rare show of solidarity, Parti Québecois leader Jean-François Lisée has come out in support of the law, though he wanted even stricter secularist legislation. In spite of this, he too foresaw the constitutional challenge and has stated that a PQ government would use the Notwithstanding Clause to keep it in place should the courts strike it down.
The Notwithstanding Clause Lisée is so fond of is not the perfect fail safe the PQ leader makes it out to be. It is not a way for the Quebec government to flip the judiciary the legal bird should the constitutional challenge not go their way.
Section 33 aka The Notwithstanding Clause of the Canadian Charter of Rights and Freedoms says:
“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.”
Sections 7 to 15 of the Canadian Charter of Rights and Freedoms deal specifically with legal rights such as the rights of people charged with criminal conduct, as well as equality rights such as that of equal protection before the law and freedom from discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The clause allows governments to keep legislation that violates these rights in place provided they expressly declare that the law will remain in effect notwithstanding the Canadian Charter of Rights and Freedoms…
…But there is a catch.
The Notwithstanding Clause also contains a rule stating that this declaration and the law it allows can only remain in effect for five years.
The delay was created so legislators could rework the law in question to make it conform to the Charter. The five-year delay is renewable, but even laws the most stubborn politicians take pride in are reworked after being struck down by the courts.
Bill 101 is a perfect example. The Supreme Court of Canada ruled it unconstitutional, so the Quebec Government invoked the Notwithstanding Clause. During that time, the law was tweaked so it conformed to the Canadian Charter of Rights, thus eliminating the need to renew the Notwithstanding Clause and preventing future legal challenges to it.
Lisée’s mention of the Notwithstanding Clause is an indirect admission that Bill 62 is unconstitutional and would not survive a legal challenge. Once the courts strike it down and all government appeals are exhausted, it is certainly within Couillard and any other elected provincial government’s power to use and renew Section 33, but the Canadian people’s embrace of their Charter rights would make it a highly unpopular move.
With the striking down of Bill 62 a certainty, the only question left is how much more hate Quebec governments want to push on us.