Challenging Bill 21: The Decision on Section 33 of the Charter (Among Other Things)

In 2000, in an article in the UNB Law Journal (Vol. 49, 169) about section 33, entitled “Section 33 of the Charter: What’s the Problem, Anyway? (Or, Why A Feminist Thinks Section 33 Does Matter)” I said, “Whatever merits it might have, dressed up as a means to represent the will of the people against the follies of unelected courts, recourse to section 33 may actually legitimate the continuation of prejudice.” (p.169) Bill 21 (SQ 2019, c12), An Act respecting the laicity of the State, illustrates the scope of section 33 to have a significant impact on freedom of religion and religious and sex discrimination. Here I explore Hak v. Attorney General of Quebec (“Hak“), which considered the challenges to Bill 21

I wrote about Bill 21 in an earlier Slaw post (see “Religion and the Law: ‘Respect’ or Denial?” [May 21, 2019] In my May 21, 2019 post, I suggested that Bill 21 has as its purpose the exclusion from Quebec society those who wear religious clothing because it restricts their participation in the economic sphere.

Bill 21’s sweeping provisions prohibit certain individuals, those serving in public or quasi-public positions, from wearing clothing or adornment that is religious in nature (such as a hijab, turban, kippah or a cross around the neck), whether visible or invisible.

Under section 6, persons listed in Schedule II are prohibited from wearing religious symbols. Schedule II lists, among others, the president and vice-presidents of the National Assembly, administrative justices of the peace, members or commissioners of various public bodies (such as the Access to Information Commission, the Administrative Labour Tribunal and many others), public inquiry commissioners, arbitrators appointed by the Minister of Labour, the Minister of Justice and Attorney General, government lawyers or lawyers under a legal services contract with the government, police, principals and teachers (not in private schools), among others.

(Section 6 defines a religious symbol as

any object, including clothing, a symbol, jewellery, an adornment, an accessory or headwear, that
(1) is worn in connection with a religious conviction or belief; or
(2) is reasonably considered as referring to a religious affiliation.)

Schedules I and III lists bodies whose personnel or persons who must perform services with their faces uncovered by virtue of section 8.

Schedule I includes government departments, municipalities, public transit authorities, school boards, health and social services, inquiry commissions, bodies the majority of members of which are appointed by the National Assembly, childcare centres, and some private institutions with government resources.

Schedule III includes members and personnel of the National Assembly and staff of the lieutenant-governor, elected municipal officers (except of municipalities governed by Indigenous organizations), commissioners of school boards, public inquiry commissioners, adjudicators within the administrative branch, police, physicians, dentists and midwives who practise in a public institution, childcare providers under statute, directors of these bodies who receive remuneration (except persons who are elected) and anyone appointed by the government, National Assembly or a minister who is performing functions assigned by those entities.

Those entering into a contract with or receiving financial assistance from affected institutions may also be required to perform functions with their faces uncovered, although this appears to be discretionary by the institution (s.10). Collective agreement or contract provisions must also be consistent with the requirements of Bill 21 (s.16).

Under section 3 of Bill 21, “State laicity requires parliamentary, government and judicial institutions
to comply with all the principles listed in section 2, in fact and in appearance, in pursuing their missions.” (emphasis added) These principles are

(1) the separation of State and religions;
(2) the religious neutrality of the State;
(3) the equality of all citizens; and
(4) freedom of conscience and freedom of religion.

The upshot of Bill 21 is that “freedom of conscience and freedom of religion” and (religious) and to the some extent sex equality as reflected in religious practices are reserved to the private sphere. It assumes that representation of religion in the public sphere is to be equated to representation of religion as characterizing the body politic and therefore inconsistent with the secular state. As the preface to Bill 21 states, “it is important that the paramountcy of State laicity be enshrined in Québec’s legal order” because this ensures the state’s impartiality.

Persons currently in the affected positions may continue displaying religious symbols, but they will not be able to move to another position, whether lateral or a promotion, without deciding whether conforming to their religious beliefs or values or maintaining their employment is more important to them, and new employees will be bound by the strictures of Bill 21. Various ministers are responsible for enforcing the provisions and establishing a framework for accommodations, but in what some might perceive as an irony, under section 32, until the government has made a relevant order, “the Minister of Immigration, Diversity and Inclusiveness is responsible for their administration” (this is the Minister who introduced Bill 21). Bill 21 amends the Quebec Charter of Human Rights and Freedoms to bring it in accordance with Bill 21 (s.33) and employs the section 33 override to prevent challenges under sections 2 and 7-15 of the Canadian Charter (s.34).

For a legal history of the bill (including applications for a stay), see “Quebec’s Religious Neutrality Bill: What a Leave to Appeal Could Mean for Bill 21“. Many commentators have criticized Bill 21 and I do not intend to repeat those arguments here. (See, for example, “Quebec’s Bill 21 misapplies religious neutrality principle“; “A cautionary tale: The unintended consequences of Québec’s Bill 21“). It has also been argued, however, that religion should be a private matter, that religious symbols are equivalent to political symbols, which are not permitted in certain contexts, that removing religious symbols from the workplace permits “a space of freedom in which no one’s ideology is on display”, among other arguments (see “The CAQ’s secularism bill is a positive step forward“). Although generally, from 65% to over 70% of Quebecers approved banning religious symbols in the public sector, depending on the context, the number dropped when people were asked about particular symbols in particular contexts (although still a majority, even if a bare majority, in most cases) (see “Nearly two-thirds of Quebecers support public-sector ban on religious symbols, poll finds“.)

The plaintiffs in the Hak case, dealing with four separate actions, illustrated, one assumes deliberately, the range of individuals who were negatively affected in their employment by Bill 21; their experience is supplemented by the affidavits filed by others who will be affected. (Note: Given my own lack of facility in French, I’m relying on the less than perfect Google translation on CanLII in discussing the decision.) Together they include Muslim women who wear a hijab, finishing their education and expecting to teach in the public system, or teaching elsewhere but wanting to teach in Quebec, or wanting to transfer within the system or anticipating promotions within the system; a Jewish woman who wears a headscarf who will not be able to teach in the public system; a Muslim woman who wears a hijab who will not be able to practise law in the public sector; a Sikh woman who dresses in accordance with that faith as more often seen in men (long hair, turban, bracelet, kirpan); a Christian woman who wears a cross and religious medal around her neck; a practising Muslim who wears a beard who will not be able to become a Crown attorney; a man who wears Jewish religious attire who will not be able to provide legal services to government entities; and two commissioners with the English Montreal School Board (EMSB) who send their children to the EMSB (paras. 5-24, 64)

A number of interveners also participated in support of the plaintiffs and others in support of the defendants, the Minister of Education and the Minister of Justice and Attorney General, who was the Minister of Immigration, Diversity and Inclusion a the time of passage of Bill 21. (These participated variously in the four actions.) Particularly noteworthy, perhaps, is that For the Rights of Women of Quebec (“PDF”), a non-profit group that is “committed to defending women’s right to equality, from a feminist perspective” intervened in support of Bill 21 and Free thinkers atheists (“LPA”) was a “friendly speaker”, “aim[ed] to offer [its] distinct perspective on the evolution of freedoms of conscience, religion and expression knowing that atheism consists of a value system rejecting supernatural beliefs, such as faith in one or more deities” (para. 51)

The plaintiffs raised several grounds to challenge Bill 21: pre-confederation rights, unwritten constitutional principles (specifically, the rule of law and judicial independence), mobility rights, Bill 21’s vagueness, the impact of section 28 of the Canadian Charter (all of which Blanchard JCS rejected), the application of section 33 of the Canadian Charter of Rights and Freedoms to the provisions of Bill 21 (about which he made comments designed to limit its effect, despite accepting it), and the application of the provisions to members of the Quebec National Assembly and to the English school boards (both of which he accepted). I focus here on Blanchard JCS’s analysis of section 33, section 28, and the application to members of the National Assembly and to the English school boards.

Justice Blanchard’s analysis throughout must be seen against what can only be described as his disapproval of Bill 21.

[68] There is no doubt that [Bill] 21 has serious and negative consequences for all people who wear religious symbols in public. In general, on the one hand, all those who hold a job covered by [Bill] 21 find themselves stuck in their current position since they cannot change it under penalty of losing the benefit of the anticipation clause, unless [they] decide to no longer wear religious symbols in public.

[ 69 ] On the other hand, all these people who aspire to one of these jobs find themselves faced with the following dilemma: either they act according to their soul and conscience, in this case their beliefs, or else they work in the profession of their choice. It is easy to understand that this is a cruel consequence which dehumanizes the people concerned.

[ 70 ] For many, the legislator sends the explicit message that their faith and the way they practice it do not matter and that it does not carry the same dignity or require the same protection on the part of the State. For them, [Bill] 21 postulates that there is something fundamentally wrong or harmful with religious practices, especially some of them, and that the public must be warned. Thus, it conveys an explicitly exclusive message to people who are told that they cannot participate fully in the public institutions of the State only because of their intimate convictions.

In addition, there was evidence of “an upsurge in acts of harassment or denigrating and insulting remarks against … members of the Muslim faith wearing a religious symbol” (para. 71).

Initially, it might have been thought that section 33 was available for when the courts made unexpected decisions, and thus would be included in legislation that responded to decisions that had found the preceding legislation invalid (as was the case in Ford, which concerned language on commercial signs, and would have been the case in Ontario in regard to the reduction of municipal wards, for example). However, legislatures can expect that some legislation runs a serious risk of being found unconstitutional and they therefore forestall its being found invalid by incorporating an override from the beginning, as is the case with Bill 21. (For a brief history of how politicians viewed section 33 at its inclusion in the Charter, see here.) In summing up the comments about section 33 at that time, a 2018 research paper produced for the Library of Parliament said,

Section 33 was seen as a safety valve to be used only on rare occasions, and it was expected that it would be used in relation to “non-controversial issues.” It was anticipated that resort to section 33 would be to preserve basic social and political institutions and enable legislatures to overcome unacceptable judicial determinations where there was popular support for doing so. (here)

As former Supreme Court Justice Michel Bastarache wrote in “Section 33 and the Relationship Between Legislatures and Courts” in 2005,

provinces contemplated the use of the notwithstanding clause only in the face of strong
public support. As a result, many framers argued that the notwithstanding clause would be rarely
used and that it would only be applied to noncontroversial issues. The provincial legislatures
felt that it was essential to prevent a possible misuse of this new constitutional document by the
courts. (p. 2, citations omitted)

Section 33 has been employed by Yukon, Alberta, Saskatchewan, Ontario, Quebec and New Brunswick governments for various reasons: the nomination of persons to the Yukon Land Planning and Development Act (this legislation was never proclaimed in force); back to work legislation and funding of non-Catholic students in Catholic schools in Saskatchewan (both matters became moot when the province was successful on appeals); insulation of the definition of marriage by the Alberta legislature (of no effect because the matter is within federal jurisdiction) and to protect legislation precluding compensation for women subject to compulsory sterilization (the legislation was withdrawn); threatened use in Ontario when legislation reducing the number of Toronto’s municipal council seats was struck down (in a stay application, the Crown advised the government would not use the override if the Court of Appeal granted the stay, which it did); application to all Quebec’s legislation, existing and future, following the coming into force of the Charter (eventually stopped), protection of the province’s language requirement on commercial signs (the legislation was later amended and the override was not included); included in a bill ending non-medical vaccination exemptions for children in New Brunswick (subsequently removed from the bill).

Justice Blanchard applies the principle of stare decisis to find that the exercise of section 33 is in conformity with the minimal formal requirements established by the Supreme Court in Ford, as follows:

Section 33 lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case. The requirement of an apparent link or relationship between the overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review. It appears to require that the legislature identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights or freedoms. That would seem to require a prima facie justification of the decision to exercise the override authority rather than merely a certain formal expression of it. (Ford, para. 33)

As the Court in Ford explains,

A legislature may not be in a position to judge with any degree of certainty what provisions of the Canadian Charter of Rights and Freedoms might be successfully invoked against various aspects of the Act in question. For this reason it must be permitted in a particular case to override more than one provision of the Charter and indeed all of the provisions which it is permitted to override by the terms of s. 33. The standard override provision in issue in this appeal is, therefore, a valid exercise of the authority conferred by s. 33 in so far as it purports to override all of the provisions in s. 2 and ss. 7 to 15 of the Charter. The essential requirement of form laid down by s. 33 is that the override declaration must be an express declaration that an Act or a provision of an Act shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Charter. (Ford, para. 33)

The reason for the override is irrelevant and can be for political reasons (as was the case with the omnibus override in Quebec) or because the courts would find unconstitutional legislation that the legislature believes is in the interests of the population. Once the override expires after five years, it does not have retroactive effect and must be renewed if the government wants it to continue to apply to legislation (Irwin Toy).

In Ford, the “standard override provision” was “This Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of the Constitution Act, 1982 (Schedule B of the Canada Act, chapter 11 in the 1982 volume of Acts of Parliament of the United Kingdom).” (Ford, para. 23)

Section 34, the override provision in Bill 21, reads as follows:

This Act and the amendments made by Chapter V of this Act have effect notwithstanding sections 2 and 7 to 15 of the Constitution Act, 1982 (Schedule B to the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom).

Under section 33, Bill 21 also applies despite the the Quebec Charter, which was amended accordingly, thereby “steriliz[ing] without restriction the application of its articles 1 to 38” (para. 755).

Justice Blanchard concedes that the Ford judgment disposes of this question and that the rule of stare decisis applies. 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.” (para. 750) Yet, although he acknowledges the legislature’s right to override significant rights under the Canadian and Quebec Charters, Blanchard JCS is clear that he considers the standard override of all relevant Canadian Charter provisions an overreach:

[ 754 ] However, by definition, in a society concerned with respecting the fundamental rights it grants to its members, the use of the notwithstanding clause should be done in a parsimonious and circumspect manner. Some may think that the use made in the case under consideration by the Quebec legislator trivializes it, all the more so since the exemption occurs before any judicial debate on the constitutional validity of the provisions of Bill 21.

[ 755 ] This is why, in the context of the analysis of the notwithstanding clauses, the Tribunal considers it useful to highlight certain observations, because it can only note the a priori exorbitant scope of the use made of them by the legislature. In fact, with regard to the Quebec Charter, we note that Bill 21 sterilizes without restriction the application of its articles 1 to 38 , and that the same applies to articles 2 and 7 to 15 of the Canadian Charter.

[ 756 ] With respect, although this is a prerogative of the legislator, which the Tribunal does not question in any way, the Tribunal is nevertheless challenged by the magnitude of the exercise and the indifference that it displays with respect to certain affected rights and freedoms.

[ 757 ] In this regard, the Tribunal wishes to be clear. Subject to repetition, the legislator may, at will and for purely political reasons, use the exemption clauses. The Tribunal agrees and does not question the legitimacy of this approach. But, on the other hand, since it is a question of neutralizing fundamental rights and freedoms, simple respect for them should militate in favor of a more targeted use of this power which, after all, must remain exceptional.

[ 758 ] Thus, although it seems logical, that in order for Bill 21 to produce its effects at all costs, that the Quebec legislature neutralize the provisions relating to the freedoms of conscience, religion and expression set out in articles 3 of the Quebec Charter and 2a) and 2b) of the Canadian Charter, as well as those providing for the right to the safeguard of dignity (4) and respect for private life, and those arising from articles 10 to 13 and 16 to 20 of the Quebec Charter dealing with discrimination or section 15 of the Canadian Charter dealing with the right to equality before the law and the benefit and equal protection of the law, the same does not apply to the other exemptions included in Articles 33 and 34 of Law 21.

He is referring here, for example, to the right guaranteed by section 8 of the Canadian Charter to be free from unreasonable search and seizure; there are similar inapplicable provisions in the Quebec Charter, such as the peaceful enjoyment of property, that do not appear appropriate here. He is particularly concerned with Quebec Charter provisions related to the right to counsel or to a hearing by an independent tribunal:

“Thus, one may wonder what results from the suspension of the right to legal representation as well as of the right to an impartial hearing by an independent tribunal in the context where the persons covered by Bill 21 may find themselves having to do in the face of disciplinary measures (paragraph 2 of article 13 ) or surveillance and support measures (paragraph 2 of article 12 ). (para. 762)

When Blanchard JCS asked the Attorney General why the override was so broad, the latter advised him that it was to guard against those who might be able to challenge Bill 21 under these provisions, an answer that Blanchard JCS described as “a very thin and disturbing explanation” (para. 763). Bill 21 was the first time the government applied overrides to both the Quebec and Canadian Charters, thus “suspend[ing], with regard to Law 21, almost all rights and freedoms in the province of Quebec” (para. 768).

This approach is, contends Blanchard JCS, “use that appears both casual and reckless of this prerogative, in that it casts a far too broad cast” (para. 770). Accordingly, he states that his judgement with respect to the overrides applies only to those Quebec and Canadian Charter provisions “which have no apparent connection with the objective of secularism pursued by the legislator” (para. 770). He asserts that “while we suspend fundamental freedoms, it seems that the least that we can expect from the legislator, also normally guardian of the public interest, lies in a more circumscribed use. possible of this exceptional power” (para. 771). He suggests that plaintiffs should be able to contest the inclusion in overrides of provisions that are not related to the purpose of the affected legislation (para. 778).

This is a useful intervention, despite Ford‘s effective recognition of legislative autonomy in the use of section 33 of the Canadian Charter, even though, as Blanchard JCS himself acknowledges, he cannot act on his concern. The “standard” override clause has become pro forma, an easy way for the legislature to avoid the impact of the constitutionalized human rights provisions and, as here, the impact of provincial human rights protections (human rights legislation being considered quasi-constitutional in status).

There was some question whether section 28 of the Canadian Charter would prevent the application of section 33 to override sex discrimination. Justice Blanchard reviews the commentary and jurisprudence on the impact of section 28 (see paras. 801-880), which I do not review here. Section 28 is an interpretative provision that in itself does not provide rights: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” As far as teaching is concerned, more women will be affected by Bill 21 than men. Thus one might have a strong case that Bill 21 indirectly discriminates against women, as well as obviously and directly discriminating on the basis of religion and impeding freedom of religion. The wording of section 28 indicates, it can be argued, that section 33 does not apply to override section 15’s guarantee of sex equality. But “insofar as the legislator withdraws certain rights or freedoms from constitutional protection by using the derogation clause of article 33, there is no longer any substrate of law or freedom on which the section 28 can then be applied to ensure that equality between men and women” (para. 820). Section 28 does not constitute an absolute right that can ground an independent challenge.

Justice Blanchard also considers provisions of the Canadian Charter that are not subject to the section 33 notwithstanding clause, including section 3 (” Every Canadian citizen has the right to vote and is eligible for federal or provincial legislative elections.”) and section 23 (minority language education rights).

Section 8 of Bill 21 requires personnel members of a body (listed under Schedule 1 or relevant persons under Schedule III) to do their jobs with faces uncovered. Under certain circumstances, a Schedule I body may require those with whom or which it contracts or to whom or which it grants financial assistance to do the same. Schedule III includes members of the National Assembly. Section 3 of the Canadian Charter states, “Every Canadian citizen has the right to vote and is eligible for federal or provincial legislative elections.” Section 3 is not vulnerable to the section 33 notwithstanding clause. Bill 21 “effectively deprives any person who covers his face of the real possibility of running in a provincial election” (para. 884). Under Bill 21, members of the National Assembly cannot sit with faces covered and the President and Minister of Justice and Attorney General may not wear religious symbols.

The Attorney General argued that this was no different than the fact that members of the Assembly were subject to rules governing their conduct. However, Blanchard JCS differentiated that from not being able to sit at all. The same is not true of the President of the Assembly or the Minister of Justice and Attorney General because these positions do not stem from section 3 of the Canadian Charter. The requirement affecting members is not saved by resorting to parliamentary privilege, which must relate to the functions of the legislature and “external intervention would undermine the autonomy which they require for perform their work with dignity and efficiency” (para. 897). Justice Blanchard concludes, “it follows logically from the fact that if an elected person who wears a garment which covers the face cannot sit in the National Assembly, the fact that he can nevertheless remain eligible for a provincial election in the Quebec is in fact the recognition of a situation that is as absurd as it is untenable with regard to section 3 of the Charter” (para. 919). This requirement, given the combined effect of the first paragraph of section 8 of Bill 21 and of the first paragraph of Schedule III of Bill 21, is therefore unconstitutional; the Attorney General did not attempt to justify it under section 1 of the Canadian Charter.

Justice Blanchard also concludes that Bill 21 does not apply to the English boards of education. Reviewing the jurisprudence on the purpose of section 23 and its role in maintaining the language and culture of the minority, he notes, “culture, in the sociological sense of which includes the manifestation of religious or other beliefs, certainly plays the same role as language” as discussed in the jurisprudence (para. 950). This does not mean the province cannot establish certain standards, but section 23 addresses other issues. He finds that “the English-language school boards and their teachers or directors attach particular importance to the recognition and celebration of ethnic and religious diversity” (para. 983) and this can extend to hiring that reflects this diversity and that can have a positive impact on students (paras. 997, 998). Thus “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” (para. 1003).

The Attorney General did not present a justification for Bill 21, although evidence he did introduce was relevant to the first stage of the section 1 analysis, whether there was a pressing and substantial objective for the law. And the interveners’ submissions have relevance with respect to section 1. The Mouvement laïque québécois (MLQ)’s position was that the presence of religious symbols in the classroom “is tantamount to imposing a religious practice on the students and their parents…[thereby] undermin[ing] the exercise of parental authority with regard to the religious and moral education of children” and that Bill 21 did not infringe teachers’ religious rights (para. 190). PDF, “[s]tarting from the postulate that religions ‘aim at the control of women and their bodies by men’, [believes that] imposing the prohibition on wearing a religious symbol contributes to respect for the right of women to equality….” (para. 193). The LPA argued that in its private focus, religious belief is simply conscience, while public manifestation is no more than freedom of expression (paras. 196-197).

Justice Blanchard undertakes a lengthy section 1 analysis, finding the requirements are not satisfied. (See paras. 1004-1119). It is, perhaps, worth noting that he describes the deleterious effects as “very important” and the beneficial effects as “appear[ing] tenuous to say the least” (paras. 1103, 1104).

The fact section 33 does not apply to section 23 of the Canadian Charter and the lack of justification by the province assists Blanchard JCS in carving out the treatment of English school boards; ironically, however, it leaves that sector as the home of minority religious expression reversing the historical alignment of the majority Roman Catholicism with the francophone society. It will be interesting to see whether, on appeal, the English boards will be wrapped up in the spirit of Bill 21 or whether their employees will become, within a limited realm, a distinct society within a distinct society.

The original Quebec overrides excepted, the inclusion of the override in Bill 21 has the most far-reaching deliberate impact on human rights of any actual or potential overrides by any jurisdiction. It very much represents a cultural mindset that is supported by a majority of the population. In that sense, it contradicts the underlying purpose of the Canadian Charter, as well as the provincial commitment to human rights in the Quebec Charter. I ended my UNB LJ article by concluding, “Section 33 has the capacity to legitimate constitutionally the modern version of historical examples of oppression we want to forget” (p.182). The operation of section 33 of the Canadian Charter and the overrides of the Quebec Charter in Bill 21 do exactly that.

(Note: The Quebec government has announced it will appeal Hak [see here]).

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