Last week, Justice Marc-André Blanchard brought a cordial end to the hearings in a case about the constitutionality of Quebec’s ban on religious symbols, which bars teachers and some other civil servants from wearing such symbols at work.
“I’m very happy with how the trial went,” Blanchard told the lawyers in Quebec Superior Court on Tuesday. He said he was taking some time off to clear his head and would have a decision likely some time after February.
The 29-day trial, which combined several legal challenges of Quebec’s Laicity Act brought by groups that included civil rights advocates, the English Montreal School Board and a teachers’ union, was, nevertheless, acrimonious at times.
There were tearful testimonies, intense cross-examinations and, near the end, accusations of sexism lobbed from one side of the courtroom at the other.
It was, though, a particularly acrimonious season in Quebec when it came to public debate of social issues. For long stretches this fall, opinion-makers forgot about the pandemic and furiously debated the acceptability of using the N-word, the existence — or not — of systemic racism and sundry threats to free speech.
The Laicity Act was never far outside these debates.
Since Bill 21, which introduced the law, was tabled in 2019, it has become a flashpoint for clashes between conservative nationalists, who maintain it protects a historical source of modern Quebec’s identity — secularism — and progressives, who see it as an unjustified transgression of minority rights and a driver of racial inequality.
The outcome of the constitutional challenge of Bill 21 will, in a manner of speaking, decide which side is right.
But perhaps more fundamentally, the court challenge could also establish who gets to decide who is right the next time similarly intractable political questions arise.
Who gets the last word?
The court challenge of Bill 21 involves a long list of complex but fascinating constitutional issues, such as the scope of unwritten legal principles and whether a province has the power to legislate secularism.
It’s all but assured the Supreme Court of Canada will have to settle these matters at some point, regardless what Blanchard decides.
Of the issues before the court, it’s the question of who decides that strikes at the heart of what it means to live in a 21st-century democracy, says Guillaume Rousseau, a lawyer who represented a pro-secularism group at the trial.
“What is maybe even more important than the issue of secularism is the issue of who decides, and more precisely, who has the last word,” he said. “What happens when a parliament and a court, even the Supreme Court, don’t agree?”
This tension between the courts and the legislature can be framed even more provocatively: Can the people ever be wrong in a democracy?
Premier François Legault’s government maintains the answer is no.
The government’s lawyers argued the Laicity Act was passed democratically, by democratically elected representatives, and enjoys majority support in multiple opinion polls.
For a court of unelected judges, appointed by the federal government, to strike down the law would be a blow not just to the Quebec legislature but to the will of the people it represents, they said.
The National Assembly, government lawyers told the court, is “the privileged site for important social debates and is the organ for expressing popular sovereignty.”
The province is making this argument by invoking the notwithstanding clause, which allows legislatures to override some of the fundamental freedoms, legal rights and equality rights outlined in Canada’s Charter of Rights and Freedoms.
“What we are saying is that when it comes to those rights, it is up to parliament — to the National Assembly — to have the last word,” said Rousseau, who worked as an adviser to the government while Bill 21 was being passed.
“That’s how the Constitution was designed.”
Notwithstanding clause: flaw or pillar of federalism?
It’s not clear, however, that is how the Constitution was designed.
The idea of rights, after all, presupposes that legislatures can be wrong. As the majority pursues its interests, it is liable to lose sight of what is reasonable to ask of those in the minority.
These are what Alexander Hamilton, one of the Founding Fathers of the United States, called moments of “ill humour” that give rise to “dangerous innovations in government.”
The Canadian Constitution offers a guide for determining when legislatures have strayed from reasonableness. And it is the courts that, usually, get to decide when that’s happened.
The notwithstanding clause — a last-minute inclusion in the Constitution — allows temporary departures from this norm.
In theory, it’s meant to safeguard provincial autonomy and is seen as an essential ingredient of Canadian federalism.
But using the clause does mean suspending the court’s ability to check the legislature. Perhaps because this represents such a fundamental contradiction with the basic idea of a constitutional democracy, the clause has only been used sparingly, and usually with much controversy.
Premier Robert Bourassa used it in 1988 when the Supreme Court ruled Quebec’s language charter violated freedom of expression. The rest of the country was so scandalized at Bourassa’s move that, some have suggested, it torpedoed support for the Meech Lake Accord.
Brian Mulroney, prime minister at the time, called the notwithstanding clause the “fatal flaw” of the Constitution, which “reduces your individual rights and mine.”
He did nothing to remove it, though, and 30 years later, similar concerns are being raised.
Its continued presence in the charter is a reminder of an unresolved question about the nature of Canadian democracy: are legislatures free to override fundamental rights without sanction from the courts?
Whose rights matter most?
This matters because democracy is not static. It expands and contracts the notion of whose rights are deserving of protection.
At the moment in Quebec, there is much disagreement about that question.
For some, the most pressing threat is not against individual rights but against democracy itself — in the form of judges and other unelected elites interfering with the will of people.
This threat can appear especially charged in a place whose distinct culture is struggling for survival and where many fear the homogenizing force of the federal government.
For others, the more pressing threat to democracy comes from the periodic bouts of “ill humour” of the majority, such as the populist strain of Quebec politics that was especially loud this fall as it shouted down racial and cultural minorities seeking a more inclusive society.
Whenever the constitutionality of Bill 21 is resolved, the outcome is likely to alter how we understand Canadian democracy, if only by settling the question of who gets to decide when individual rights should be upheld over the majority opinion.
Your own opinion on the matter may well be tied to which of these threats to democracy concern you the most.