Back when a previous Québec government sought to impose a dress-code on the province’s employees, I suggested here and here that, should the province seek to insulate its legislation from review based on its manifest violation of the Canadian Charter of Rights and Freedoms and Québec’s own Charter of Human Rights and Freedoms by invoking these Charters’ respective “notwithstanding clauses”, the question of constitutionality could still be raised. That is because such legislation may well infringe not only the constitutional guarantees of religious liberty, but also the federal division of powers, to which the “notwithstanding clauses” do not apply.
The idea of a dress code for (some) public employees is back, in the shape of a bizarrely named Bill 21, An Act respecting the laicity of the State. (Pro tip for the legislative draughtsman: “laicity” is not a synonym of “secularism”.) And as Bill 21 invokes the “notwithstanding clauses”, the issue of its consistency with the federal division of powers must be addressed.
Fortunately, Maxime St-Hilaire has posted a thorough review (en français) of the relevant case law over at À qui de droit. With his kind permission, a (very slightly shortened and re-formatted) translation follows:
Section 33 of the Canadian Charter of Rights and Freedoms in no way allows Parliament or a legislature to suspend the federal division of legislative powers. Only the federal emergency power makes it possible to do this, temporarily.
Recall that, in 1852, before Confederation, the legislature of the United Province of Canada enacted a Freedom of Worship Act. In 1867, the protection of religious freedom was not, as such, assigned to either Parliament or the legislatures. The Freedom of Worship Act remains purportedly valid as a law of Québec.
However, in Saumur v City of Quebec,  2 SCR 299, which involved a by-law subjecting the distribution of any literature in the city’s streets to the approval of the chief of police, four of the nine judges took the position that religious freedom was outside the scope of provincial jurisdiction, and within that of Parliament. In somewhat different ways, the four took the position that, being a restriction on freedom of religion, the by-law could not be justified as an exercise of the provincial power over “Property and Civil Rights in the Province” provided by section 92(13) of the Constitution Act, 1867, or that over “Municipal Institutions in the Province”, or any other provincial power, including that over “Matters of a merely local or private Nature in the Province”, provided by section 92(16). Rather, religious freedom was a matter within the scope either of the federal criminal law power (section 91(27)), or of the section 91 residual federal power over “Peace, Order, and Good Government of Canada”. Two other judges were content to raise this argument without either endorsing or rejecting it: “It may well be that Parliament alone has power to make laws in relation to the subject of religion as such”. (387; per Cartwright J). Only three of the nine judges took the position that freedom of religion fell within the scope of the provincial power over “Property and Civil Rights” or, perhaps, “Matters of a merely local or private Nature”.
Saumur was ultimately decided on the basis of the by-law’s interpretation, rather than its validity. Two years later, in Henry Birks & Sons (Montreal) Ltd v City of Montreal,  SCR 799, the Supreme Court unanimously held that a Québec statute specifically allowing municipalities to prohibit the opening of shops on designated Catholic holidays was ultra vires the province, because in pith and substance it was colourable criminal law. Justice Kellock (with the agreement of Justice Locke), went so far as to suggest that
[e]ven if it could be said that legislation of the character here in question is not properly “criminal law” within the meaning of s. 91(27), it would, in my opinion, still be beyond the jurisdiction of a provincial legislature as being legislation with respect to freedom of religion dealt with by the [Freedom of Worship Act]. (823)
This was also the view of Justice Rand, for whom “legislation in relation to religion the provision is beyond provincial authority to enact”. (814)
In Dupond v City of Montreal,  2 SCR 770, Justice Beetz, for the majority, argues that the freedom of religion belongs partly to the federal criminal law power, so far as the imposition of religious observance is concerned, and partly a matter of provincial competence over purely local matters (similarly to the “freedoms of speech [and] of the press”). (796-97)
This was confirmed in R v Big M Drug Mart,  1 SCR 295, where Justice Dickson, for the majority, held that
Parliament’s legislative competence to enact the Lord’s Day Act depends on the identification of the purpose of the Act as compelling observance of Sunday by virtue of its religious significance. Were its purpose not religious but rather the secular goal of enforcing a uniform day of rest from labour, the Act would come under s. 92(13), property and civil rights in the province and, hence, fall under provincial rather than federal competence. (354)
Since the freedom of religion includes the freedom of conscience, and thus the freedom not to believe, it is tempting to argue that any law that imposes either a form of religious belief or non-belief falls under Parliament’s exclusive power over criminal law. However, as explained in Reference re Assisted Human Reproduction Act, 2010 SCC 61,  3 SCR 457, to belong to the realm of criminal law, a law must “suppress an evil, … establish a prohibition, and … accompany that prohibition with a penalty”. 
However, it seems settled that both Parliament and the legislatures are able to protect or to justifiably limit, within the meaning of section 1 of the Charter, the freedom of conscience and religion, through the use of their ancillary powers. The power over religion is thus a shared one within the federal division of powers. The Supreme Court has confirmed this, for example in R v Edwards Books and Art Ltd,  2 SCR 713. Justice Dickson, uncontradicted on this point, expressed the following view:
[T]here exist religious matters which must similarly fall within provincial competence. … It would seem, therefore, that the Constitution does not contemplate religion as a discrete constitutional “matter” falling exclusively within either a federal or provincial class of subjects. Legislation concerning religion or religious freedom ought to be characterized, I believe, in light of its context, according to the particular religious matter upon which the legislation is focussed. …
Applying the above principles to the appeals at bar, it is, in my opinion, open to a provincial legislature to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion. (750-51)
There is nothing impossible about a Québec statute on secularism enacted notwithstanding the Charter being held invalid as a violation of the federal division of powers. The outcome will depend largely on the evidence and arguments related to the (real) purpose of the law. If those challenging the law were able to persuade the court that the purpose of (and not only the means taken by) the statute is religious in the legal, that is to say broad, sense of the term, and restrictive, the court could strike it down in whole or in part, notwithstanding its use of the notwithstanding clause.
I would only add a few comments. To begin with, following up on Professor St-Hilaire’s conclusion, it is important to note (as I already did in my original posts) that what might, to some, feel like a runaround to avoid the effects of the invocation of section 33 of the Canadian Charter is nothing of the sort. Some runarounds have been proposed in the last couple of days, for example by Louis-Philippe Lampron and Pierre Bosset, who suggest that unwritten constitutional principles can be invoked to impose limits on the legislature’s ability to invoke section 33. This is just not plausible. In British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49,  2 SCR 473, the Supreme Court made it clear unwritten principles cannot be used to make up perceived shortcomings in the scope of the Charter’s protections. This logic must apply to the “notwithstanding clause” as much as to the gaps in the Charter‘s substantive rights. By contrast, however, the limits on a provincial legislature’s legislative power that pre-existed the Charter remain intact and enforceable. Section 31 of the Charter itself tells us as much. It provides that “[n]othing in this Charter extends the legislative powers of any body or authority.”
Next, I would argue that the purpose of Bill 21 is quite clearly religious, or rather anti-religious. These two things, as Professor St-Hilaire points out, are equivalent for constitutional purposes. The bill’s preamble proclaims that “it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec” and that “it is important that the paramountcy of State laicity be enshrined in Québec’s legal order”. Clause 1 provides that “The State of Québec is a lay State”. (Pro tip for the legislative draughtsman: “lay” is not a synonym of “secular”; this is another calque, just like “laicity”.) Clause 2 sets out “principles” on which “[t]he laicity [sic] of the State is based”, including “the separation of State and religions” and, supposedly, “the religious neutrality of the State”. (This is a rather transparent lie, since the bill would exclude religious individuals from a variety of functions within the purportedly neutral state.) And Bill 21’s centrepiece is, of course, Clause 6, which provides that various public employees and some contractors “are prohibited from wearing religious symbols in the exercise of their functions”. Only “religious symbols” ― not political ones, or those that have to do with any other aspect of people’s identities ― are targeted. This is a regulation of religion, and nothing else.
Consider, then, the arguments that the Québec government might make in defence of its legislation. The authority for it, if it exists at all, presumably comes from section 45 of the Constitution Act, 1982, or section 92(4) of the Constitution Act, 1867. The former provides that, subject to limitations that are not relevant here, “the legislature of each province may exclusively make laws amending the constitution of the province”. The latter grants the provinces power over “The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers”. The scope of section 45’s predecessor provision, section 92(1) of the Constitution Act, 1867, was explained by Justice Beetz in his majority reasons in Ontario (Attorney General) v OPSEU,  2 SCR 2. To determine whether an enactment qualifies as an amendment to the constitution of the province, one must first ask:
is the enactment in question, by its object, relative to a branch of the government of Ontario … ? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? (39)
However, even if the answer to this first question (or set of questions) is in the affirmative, one must keep in mind the restrictions on the provinces’ legislative authority imposed by the federal division of powers, and other limits imposed by the constitution of Canada as a whole. One can certainly argue that Bill 21 imposes duties on members of the three branches of Québec’s government, and sets out a “principle of government”. But if its true purpose is not so much to regulate the functioning of the provincial government as to compel religious non-observance, then it is still not valid legislation amending the provincial constitution. And I would add that, although the government might claim that it is not trying to prevent anyone from being religious outside of their working hours, religiosity is not something that can be switched off from 9AM to 5PM and then back on again.
Indeed, Justice Beetz’s comments in OPSEU on section 92(4) are suggestive here. Justice Beetz wrote that limitations on civil servants’ political activity at both the federal and the provincial level “constitute a term or condition of tenure of provincial office, enforced by compulsory resignation or dismissal. Their object is to ensure in this respect, not partial virtue, but global political independence for provincial officers.” (48) One can certainly say that Bill 21’s limitations on religious expression are a term or condition of tenure of provincial office. But if the government argues that their object is to ensure not partial, but global irreligion on the part of its employees, then the proposition that Bill 21 is not aimed at banning religious observance should be a tough sell.
Quite apart from constitutional issues, Bill 21 is a disaster from the standpoint of political morality. It is a massive violation of religious liberty of those who already are, or might in the future like to become, employed by the Québec government or hold provincial office. While less discriminatory on its face than Québec’s previous attempts at a dress code, in that it purports to ban all religious symbols and not just “ostentatious” ones (i.e. the hijab, the kippah, and the turban, but not the cross worn by Catholics, lapsed or otherwise, who constitute the majority of Québec’s population), it still transparently invites discrimination. It seems unlikely, to say the least, that anyone will be looking for crosses under civil servants’ shirts. Hijabs, kippahs, and turbans, on the other hand… But the constitution, despite the Québec government’s attempt to shove it aside, might yet stand in the way of this iniquity.