I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? 

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Don’t do it. Just don’t.

Devaluing Section 33

What happens to “Charter values” when a statute invokes the “notwithstanding clause”―and what this might mean for Québec’s Bill 21

Here is a little puzzle I have thought of when reading an intriguing Policy Options post by Grégoire Webber, Eric Mendelsohn, and Robert Leckey. Their argument, in a nutshell, is that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause” by a legislature ― for example, by Québec’s legislature enacting
Bill 21, an anti-religious dress code ― does not prevent the courts from pronouncing the statute to which it applies contrary to the Charter. The “notwithstanding clause” does not insulate the statute from judicial review, but merely means that the statute continues to operate regardless of that review’s outcome. I am tentatively inclined to agree, and may have more to say on this soon. But for now, I want to raise a somewhat different issue.

If Bill said that public servants guilty of wearing religious symbols are to lose their jobs, or that overtly religious persons cannot be hired for the positions to which clause 6 applies, then that rule would be protected by the “notwithstanding clause”, and so would be its straightforward application. But in fact Bill 21 does not itself specify what happens if its prohibition, in clause 6, on “wearing religious symbols” is disregarded. Rather, clause 12 merely provides that “[i]t is incumbent on the person exercising the highest administrative authority” over those to whom that prohibition applies “to take the necessary measures to ensure compliance”. The taking of those necessary measures would presumably be an administrative decision, subject to judicial review. And this is where things get interesting, in the sordid way in which anything having to do with judicial review of administrative decisions is interesting.

In a sane system of judicial review of constitutionally suspect administrative decisions ― like the one set out in Slaight Communications v Davidson, [1989] 1 SCR 1038 ― a decision to discipline, and eventually to dismiss, a public servant for breaching the prohibition on wearing religious symbols would, I think, have to be valid, so long of course as Bill 21 is protected by the “notwithstanding clause”. Such a decision is impliedly authorized by the statute, so to challenge its constitutionality one would need to challenge the statute itself, and the “notwithstanding clause” means that, whatever other consequences that challenge may have, the statute continues to operate.

But we no longer have a sane system of judicial review of administrative decisions that raise Charter issues. (I should make clear that I have grave misgivings about Slaight‘s correctness on the merits; it is only its approach to judicial review that I approve of.) What we have, instead, is the approach first set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, under which the issue is not whether an administrative decision is authorized by a statute interpreted so as to comply with the Charter, but whether it gives as full an effect to “Charter values” in light of the statute’s objectives. How the “notwithstanding clause” fits into this scheme is not at clear.

The question is, does the application of the “notwithstanding clause” to a statute suspend the application of “Charter values” to decisions authorized by that statute? And the answer to that question is by no means obvious. Doré itself, of course, is silent on the matter, as are its successors Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. So too is the text of section 33 of the Charter, which speaks of legislation “hav[ing] such operation as it would have but for the provision of th[e] Charter” (emphasis mine) in respect of which section 33 is invoked. The Charter says nothing about “values”.

Are these values the same as Charter rights, in which case they might be ousted along with the “provisions” muted by the invocation of the “notwithstanding clause”? The cases at least suggest otherwise. In particular, in Loyola, the majority spoke of “Charter protections” as a category encompassing “values and rights” [35; emphasis mine], suggesting that values and rights are different. It added that “Charter values [are] those values that underpin each right and give it meaning”. [36] And so, one might at least make a serious argument to the effect that the values remain intact regardless of the temporary inapplicability of the Charter‘s provisions (and rights), and that Doré‘s injunction that “administrative decisions are always required to consider fundamental values” [35; emphasis in the original] remains in full force, notwithstanding the “notwithstanding clause”.

The reluctance of the framers of Bill 21 to spell out, in the legislation itself, the unpalatable consequences they presumably intend, combined with the perverseness of the administrative law doctrines endorsed by the Supreme Court, may thus result in the nullification of one of the bill’s most significant features ― its attempt to exclude judicial scrutiny. I hope that no one doubts my distaste for Bill 21. I have denounced its illiberalism here, arguing that Quebeckers ― and the rest of us ― need to stop fearing “the way in which others might use their liberty if we do not preemptively coerce them”. And I have myself defended what some might think of as a workaround designed to challenge the constitutionality of Bill 21 despite its invocation of the “notwithstanding clause”. And, more broadly, I have long argued that the “notwithstanding clause” would be best left untouched. But I cannot say I find the idea of relying on “Charter values” to subvert the invocation of the “notwithstanding clause”, even one as distasteful as Bill 21’s, especially satisfactory either. The whole concept of “Charter values” is a figment of the judicial imagination, and it usually serves, no matter the protestations of the TWU majority, to water down constitutional rights and to subvert the authority of the supreme law more broadly.

One should note, also, that even if the argument that Charter values continue to apply despite the “notwithstanding clause” is successful, there would remain the issue of weighing these values against statutory objectives. I will not say much about this here, beyond observing that there is glaring conflict between the ostensible aims of Bill 21 as a whole, stated in its clause 4, which 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”, and its real aims, and in particular, the aim of the ban of wearing religious symbols. I am not sure how a court would deal with this, but here again the reluctance of the framers of of Bill 21 to forthrightly admit that they are trying to simply purge Québec’s officialdom of overtly religious individuals may well open a space for judicial subversion.

It may yet be, then, that the story of Bill 21 will turn out to have something that will look, from the standpoint of the protection of individual rights, more or less like a happy ending. But we should not let ourselves be deceived. Two wrongs do not make a right. One can hardly make up for the Québec legislature’s unwillingness to be bound by constitutional law by exploiting similar unwillingness on the part of the Supreme Court. And maybe, just maybe, the court would in fact recoil before the prospect of following the implications of the Doré line of cases all the way to the nullification of section 33 of the Charter. Who knows ― they might even seize the opportunity for getting rid of Doré and restoring some sanity to the Canadian law of judicial review.

To be honest, I’m not sure which outcome is more desirable. On the one hand, I want to see Bill 21 undone. On the other, although the Québec legislature would have no cause for complaint if it is tripped up by its own cowardice, those of us who care about the Rule of Law could not happy by its further subversion, even if we like the immediate results. But then again, I have the luxury of worrying about the Rule of Law from a distance. Those personally affected by Bill 21 may feel differently about this.

No Way to Make Law

The legislative process is being disgracefully abused in Ontario. Constitutional lawyers need to pay attention.

I wanted to write a post about those anti-carbon tax stickers the Ontario government wants to require gas stations to post. I will, eventually, get around to writing that post, I hope. Spoiler alert: I don’t like the idea of the Ontario government telling people what to say. Anyway, before I get around to a post detailing my objections to the substance of this policy, I need to write this one, which is about process by which the anti-carbon tax sticker requirement is being made into law. This process is disgusting, and I think we (by which I mean Canadian lawyers, especially Canadian lawyers interested in the constitution, and other members of the public interested in law and governance) need to be much more upset about it than I think we are.

The anti-carbon tax sticker requirement is set out in sub-clause 2(1) of the Federal Carbon Tax Transparency Act, 2019, Schedule 23 to Bill 100, Protecting What Matters Most Act (Budget Measures), 2019. Yes gentle reader, Schedule 23. Schedule 23 out of 61, that is. A great many things matter in the province of Ontario, one must surmise, and need protecting. The “Explanatory Note”, which provides anyone who can be bothered to read it an overview of the 61 statutes being amended or introduced by Bill 100, alone runs to more than 9000 words, or 13 dense pages of small print. And this is not because it is unduly detailed; on the contrary, in some cases, it contents itself with setting out “some highlights” of the amendments or new legislation being implemented. The actual legislation runs to about 81,000 words ― the length of a PhD dissertation. I think it is a safe bet that no one will ever bother reading that.

Among the threescore statutes concerned, a solid majority have little to do with the budget, as one would, I think, understand this word. There is the Bees Act, for instance, amended “to expand the method of delivering inspectors’ orders” made pursuant to some of its provisions; there is a new Combative Sports Act, 2019, which regulates ― so far as I can tell from its (perhaps inevitably, though I’m not sure) convoluted definitions provisions ― boxing, wrestling, and the like; there is the Courts of Justice Act, amended in relation to the publication of the Ontario Judicial Council’s reports and also to limit some civil jury trial rights; there is new legislation on Crown liability (which has received some harsh criticism); there are important changes to the Juries Act (which have actually come in for some praise); there is, of course, the gas station sticker legislation; and much, much, more, right up to some not doubt vitally important amendments to the Vital Statistics Act.

There is, so far as I can tell, no reason having anything to do with good government why these statutes need to be amended or enacted as a block, as part of a package of budget matters. Stephen Harper once had his “five priorities”, and though these were inevitably much derided, one could claim with a modicum of plausibility that a new government might focus on, say, those five things. Anyone who actually thinks that “combative sports”, carbon tax stickers, vital statistics, and 58 other things are all “what matters most” would be well advised to run, not walk, to the nearest psychiatrist’s office. (I say so without worrying for Ontario psychiatrists; they are unlikely to be burdened with many such visitors.) But of course, the reasons enact this legislative blob likely have nothing to do with good governance.

And this is where it’s time to drop the snark, and get serious ― and constitutional. In abstract separation of powers theory, the legislature is supposed to make law (except in those areas where it has delegated this power to the government, or left it to the courts; these are, of course, significant exceptions). In all the constitutional practice of all Westminster-type systems, so far as I know, the government dominates the legislative agenda. It mostly decides which statutes get in enacted and when. Still, the legislature has a distinctive role to play. For one thing, it is where legislation is debated, and debate might have some symbolic democratic value even if votes are ultimately whipped and their outcome is not in question. And for another, the process of committee study is what allows a detailed consideration of the proposed legislation, and also public submissions on it, and perhaps amendments to improve the proposal.

A government that cared about good governance would value this process. It might ultimately force its bills through, but it would at least be open to the idea that they might be improved, at the level of detail if not of principle, by input from backbenchers, members of the opposition, and members of the civil society. By contrast, a government that doesn’t care about good governance, and is only interested in getting its way as expeditiously as possible will see the legislative process, even one whose outcomes it is ultimately able to control, as a nuisance or, at best, as a needless formality. In either case, it will endeavour to deny the legislature the ability to play any other role than that of an extension of the government itself.

A government of the latter sort has a variety of means at its disposal. The amalgamation of multiple unrelated bills in a giant package, which drastically limits, perhaps to nothing, the extent to which each of them can be separately debated and studied is one of these means. Both Mr. Harper’s government and Justin Trudeau’s have been criticized for using and abusing this technique. Bill 100 is not exactly new in embodying it. But it should not be regarded as any less shocking despite this. By amalgamating 61 mostly disparate pieces of legislation, it prevents the legislature from properly considering them ― including those among them, like the Crown Liability and Proceedings Act, 2019 for example, that will become really substantial and very important statutes in their own right, as well as those, like the carbon tax sticker legislation, that have obvious, and ominous, implications for constitutional rights and freedoms. Bill 100 thus demonstrates nothing short of contempt for both good governance and the distinct constitutional role of the legislature. It is, as I have already said, disgusting and outrageous.

We have become inured to violations of what is sometimes described as legislative due process. As lawyers, we tend inevitably to focus our attention and energy where our expertise can make an obvious difference, in coming up with and then pursuing through the courts arguments about why the legislative end-product might be unconstitutional and therefore not law at all. I think this is understandable, inevitable to some extent, and perhaps even not always a bad thing. Still, by not thinking about the way laws are made, we let those who make them get away with the procedural equivalent of bloody murder.

This cannot go on. Those who take a benign view of legislatures and want to celebrate legislative engagement with constitutional issues need to get to grips with the reality of broken legislatures that act as rubber-stamps for executives that despise them. Those who, like me, are wary of legislatures and insist on the courts having a robust role in enforcing constitutional rights and other restrictions against them must nevertheless pay attention to what the legislatures are up to ― all the more so since we are more likely than our friends to take an appropriately skeptical view of the matter. But skepticism may not become indifference. We, along with the legislatures’ fans, with whom we can make peace for this purpose, need to get serious about making sure that our laws are made in a decent way ― and not in the way Ontario is making its laws right now.

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

 Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.

Ce qui compte

Que le projet de loi anti-religieux du Québec soit ou non raciste ou islamophobe est sans importance. Ce qui compte, c’est son illibéralisme

Dans le débat autour du Projet de loi 21, la législation mise de l’avant pour faire de la laïcité la doctrine religieuse officielle du Québec et pour imposer une tenue vestimentaire fondée sur ce dogme aux enseignants, juristes et policiers de la province, on consacre beaucoup d’attention à la question de savoir si ce projet est un reflet du racisme, de l’islamophobie ou d’une autre forme de discrimination. Ceux qui critiquent le projet de loi le disent souvent. Ceux qui le défendent, et même certaines personnes qui ne le font pas, s’en déclarent offusqués et insistent pour dire que la forme agressive de laïcité que le Québec cherche à imposer découle d’une vision politique fondée sur des principes. Or, il me semble que tout cela est sans importance. Que le Projet de loi 21 soit le produit de la discrimination ou de principes fondamentaux importe peu. Il est tout aussi abominable dans un cas comme dans l’autre.

Je dois dire que, personnellement, je me doute bien de ce que la xénophobie contribue, de façon plus que négligeable, au soutien politique dont bénéficie le Projet de loi 21. Sans une peur irrationnelle d’un « envahissement », des étrangers (réels ou supposées tels) qui « imposent leurs façons de faire » aux populations existantes (30, 50, voire 100 fois plus nombreuses), l’ambition des tenants de la laïcité dogmatique d’imposer leur croyance au Québec serait selon toute vraisemblance restée parfaitement théorique. Elle l’a été, après tout, des décennies durant, avant que cette peur ne fût gonflée suite à la décision de la Cour suprême dans Multani c Commission scolaire Marguerite-Bourgeoys, 2006 CSC 6, [2006] 1 RCS 256, alias l’affaire du kirpan. On nous demande certes de nous rappeler la relation unique et troublante qu’a entretenue le Québec avec la religion (catholique), mais l’appui à la laïcité virulente était sans commune mesure avec son niveau actuel à une époque où, pourtant, la mémoire de cette relation était bien plus vive qu’elle ne l’est à présent. Cependant, quoi qu’il en soit en général, on devrait probablement être réticent à l’idée de lancer des accusations de xénophobie à des individus ― à moins, bien sûr, d’avoir des raisons spécifiques de le faire dans leur cas particulier.

Concentrons-nous donc sur les principes qu’on prétend justifier le Projet de loi 21. Présumons, pour les fins de l’argument, que ceux qui l’appuient croient réellement que, pour citer Christian Rioux dans Le Devoir, “the diversity of modern societies makes state secularism an increasingly unavoidable requirement. The pluralist societies are, more citizens demand that the state’s religious neutrality be beyond reproach” (translation mine here and below). Let us ignore the delightful irony of a man named Christian preaching secularism. Let us even avert our eyes from the sleight-of-hand involved in the equation of “state neutrality”, which as the Supreme Court explained in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, “is required of institutions and the state, not individuals”, [74] with the “neutrality” of men and women who work for the state. Let us concede, or imagine, that the supporters of Bill 21 believe in good faith that their vision of secularism is morally justified.

Pourquoi ont-il néanmoins tort? Tout simplement, parce que cette forme de laïcité requiert de grossières violations de la liberté individuelle. Elle veut dire que l’État peut imposer aux individus une façon particulière de pratiquer ou de ne pas pratiquer leur foi ― leur dire, donc, s’ils pourront ou non vivre selon leurs valeurs fondamentales. M. Rioux soutient que le Projet de loi 21 ne fait rien de tel, puisqu’il n’affecterait pas le droit de vivre sa foi, mais seulement le « droit de l’afficher pendant les heures de travail » ― comme si on pouvait avoir une foi à temps partiel. L’idée est risible. Si on demandait à M. Rioux de porter une kippah, mais seulement pendant les heures de travail, ça lui irait? (C’est pour cette raison que les tentatives, fréquentes, de dresser une analogie entre le Projet de loi 21 et les interdictions sur l’auto-identification politique ne fonctionnent pas : l’engagement politique, lui, est toujours à temps partiel, même pour un partisan endurci, et peut être mis de côté, puis renouvelé, alors que la foi religieuse ne le peut pas.)

Il va sans dire, l’État peut limiter, voire nier, la liberté d’une personne pour l’empêcher de s’en servir pour porter atteinte à la vie, à la liberté ou aux biens d’autrui ; et, peut-être, pour l’empêcher de nier l’appartenance égale d’une autre personne à la communauté. Or, les détenteurs de charges publiques ou les employés de l’État qui refusent de se convertir à une religion à temps partiel ou de faire acte d’apostasie ne font rien de tel. Ils ne volent personne, ils n’empêchent personne de faire quoi que ce soit, ils n’imposent leurs croyances à personne. Ils sont, bien sûr, manifestement identifiables comme appartenant à une confession religieuse ou une autre, mais la plupart de nous sommes manifestement identifiable comme apparentant à un genre ou à un groupe racial plutôt qu’un autre. Une enseignante musulmane qui porte le hijab ne fait pas plus de ses élèves des Musulmans qu’un enseignant blanc n’en fait des hommes blancs. (Il est bien sûr possible qu’une enseignante ou un fonctionnaire croyants fasse du prosélytisme ou accorde un traitement de faveur à un co-religionnaire. C’est cela qu’il faut réprimer, le cas échéant, tout comme il faut réprimer la propagande ou le favoritisme fondés sur d’autres aspects d’une identité personnelle.)

Sauf que, pour leur part, les obsédés de la laïcité qui soutiennent le Projet de loi 21 acceptent que l’État dénie la liberté individuelle pour bien d’autres raisons encore. M. Rioux écrit que, « [f]ace au multiculturalisme qui tente d’imposer partout sa pensée unique, le premier ministre a eu raison d’affirmer dimanche dernier que “c’est comme ça qu’on vit ici” », parce que « les Québécois ont beaucoup plus qu’une langue en partage ». Passons outre, encore une fois, l’ironie d’une dénonciation de la pensée unique conjuguée à l’insistance que l’État peut priver les citoyens de leur liberté au nom de la façon dont on « vivrait ici » et de ce qu’on aurait, supposément, « en partage ». Si M. Rioux n’était pas un hypocrite, l’idée qu’une façon de vivre officiellement reconnue ― réputée largement partagée malgré et, en fait, précisément en raison de l’évidence frappante du fait qu’elle ne l’est pas ― peut être imposée par la force par l’État à ceux qui n’y souscrivent pas ne serait ni moins fausse ni moins pernicieuse. Cette idée, c’est la prétention que ceux qui détiennent le pouvoir sont autorisés à dicter leurs croyances et leur façon de vivre à tous, pour la seule et unique raison qu’ils détiennent le pouvoir. Elle est incompatible avec toute liberté digne de ce nom.

Bien entendu, cette opinion illibérale est largement répandue. Elle n’est le propre d’aucun groupe racial ou religieux, d’aucune nation. M. Rioux en appelle, à l’encontre des accusations d’islamophobie, au fait qu’une large majorité de Musulmans français seraient favorables à des restrictions similaires à celles qu’imposerait le Projet de loi 21. Ils ne peuvent pas être islamophobes, eux, n’est-ce pas? C’est très juste, et sans pertinence aucune. Un Musulman français peut être tout aussi illibéral qu’un Canadien français catho-laïque. D’ailleurs, les chouchous judiciaires des intellectuels canadiens bien-pensants se sont montrés tout à fait capables de verser dans l’illibéralisme de cette sorte quand ils ont invoqué de mythiques « valeurs communes » pour permettre à un organe de l’État de nier une accréditation à une institution religieuse dissidente.

Le dire maintenant peut sembler étonnant, mais le débat autour du Projet de loi 21 démontre aussi bien que n’importe quel autre ne pourrait le faire que l’égalité, et les -phobies et les -ismes qui l’accompagnent, prennent beaucoup trop de place dans notre pensée et notre discours. Il ne s’agit pas de dire que ces choses sont sans importance. Cependant, ce qu’il y a de mauvais dans notre vie publique n’est pas toujours mauvais parce que cela contrevient à la valeur d’égalité. Par ailleurs, ce qui n’y contrevient pas n’est pas forcément permis pour autant, et ce qui contribue à la réaliser n’est pas, dès lors, requis. Il est temps qu’on se rappelle que la liberté est tout aussi importante ― mieux encore, qu’on réalise qu’elle est plus importante, mais je n’en demande pas autant tout de suite. Il est temps qu’on se rappelle que les individus en chair et en os, et non des abstractions rêvées ou des communautés imaginées, sont ce qui compte. Il est temps qu’on cesse de craindre l’usage que feraient les autres de leur liberté si on ne les menottait pas par prévention. Il est temps qu’on soit libre.

What Really Matters

Whether Québec’s anti-religious bill is racist or Islamophobic is beside the point. What matters is its illiberalism

In the debate about Bill 21, Québec’s proposed legislation to make “laicity”, whatever exactly that is, the province’s official religious doctrine, and to impose a correspondingly faith-based dress code on its teachers, lawyers, and police officers, much attention is being devoted to the question of whether the endeavour reflects racism, Islamophobia, or other forms of discrimination. The proposal’s critics often say that it does. Its defenders, and indeed some critics, profess offence at the suggestion, and insist that the aggressive form of secularism the Québec seeks to enforce is a principled political vision. It seems to me that this all quite beside the point. Whether or not Bill 21 is the product of discrimination or of high principle does not matter. It is equally despicable either way.

Now, I should say that I personally have little doubt that xenophobia makes a more-than-deminimis contribution to such political support as there is for Bill 21. Without an irrational fear of “invaders”, of foreigners (actual or presumed) who “impose their customs” on the established populations (which outnumber them by 30- or 50- if not 100-to-1), the ambitions of dogmatic secularists to impose their creed on Québec would in all likelihood have remained perfectly theoretical. This is, after all, what they had been for decades, before this fear started being inflated in the wake of the Supreme Court’s ruling in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, a.k.a. the kirpan case. For all that we are asked to remember Québec’s uniquely fraught relationship with (Catholic) religion, there was nothing like the current degree of support for virulent secularism at a time when the memories of this relationship were fresher than they are now. Still, whatever may be the case in general, we should probably be reluctant to make accusations of xenophobia against individuals ― unless, of course, we have specific reasons to do so in their particular case.

Let us focus, then, on the supposed principled justifications for Bill 21. Let us presume, for the sake of argument, that its supporters really believe that, as Christian Rioux put it in Le Devoir, “the diversity of modern societies makes state secularism an increasingly unavoidable requirement. The pluralist societies are, more citizens demand that the state’s religious neutrality be beyond reproach” (translation mine here and below). Let us ignore the delightful irony of a man named Christian preaching secularism. Let us even avert our eyes from the sleight-of-hand involved in the equation of “state neutrality”, which as the Supreme Court explained in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, “is required of institutions and the state, not individuals”, [74] with the “neutrality” of men and women who work for the state. Let us concede, or imagine, that the supporters of Bill 21 believe in good faith that their vision of secularism is morally justified.

Why are they wrong? Simply because this form of secularism involves gross violations of individual liberty. It means that the state gets to tell people how, or how not, to practise their faith ― whether they will be allowed to pursue their fundamental commitments. Mr. Rioux denies that Bill 21 does any such thing, since it only affects “the right to publicize [one’s religion] during working hours” ― as if one could have a part-time faith. This is laughable. If Mr. Rioux were asked to wear a kippah, but only during working hours, would that be all right by him? (This is why the frequent attempts to analogize the policy of Bill 21 to bans on political self-identification do not work: political commitments are indeed part-time things, even for hardened partisans, and can be set aside and then resumed, in a way that religious commitments cannot.)

Needless to say, the state may limit or even take away a person’s liberty to avoid it being used to interfere the life, liberty, or property of others; and, perhaps, to avoid it being used to deny others’ equal membership in the community. But public officials or employees who refuse to convert to part-time religion or to commit apostasy do no such thing. They do not take anyone’s property; they do not deprive anyone of their ability to do anything; they do not impose their beliefs on anyone. Sure, they are visibly, manifestly, identifiable as having a religious affiliations; but most of us are visibly, manifestly identifiable as members of particular genders and racial groups, not to mention as being of a certain age. A Muslim teacher wearing a hijab no more makes her students Muslim than a white male teacher makes his students white men. (Of course it is possible that a religious teacher or public servant will engage in proselytism, or unduly favour co-religionists. These things should be punished, just as propaganda or favouritism based on other commitments or aspects of one’s identity should be punished.)

The secularist obsessives supporting Bill 21, however, have a much more expansive view of the reasons for which the state can deny people’s liberty. Mr. Rioux writes that, “faced with a multiculturalism that seeks to impose its single-minded thinking everywhere, the premier [of Québec] was right to assert … that ‘this is how we live here'”, because “Quebeckers have much more than a language in common”. Never mind, again, the irony of denouncing single-minded thinking while insisting that a state may deprive citizens of liberty in the name of “how we live here” and of what they purportedly “have in common”. Were Mr. Rioux not a hypocrite, the idea that state-sanctioned ways of doing things ― said to be widely or even universally shared despite, and indeed precisely because of, glaring evidence of the fact that they are not ― can be imposed by force on those who do not share them would be no less wrong-headed, and no less pernicious. This idea purports to authorize those in power to dictate their beliefs and their ways of living to everyone, for no other reason than that they are in power. It is incompatible with any liberty that deserves the name.

Of course this illiberal view is widely held. It is not confined to any particular racial or religious group, or any nationality. Mr. Rioux appeals, against the charge of Islamophobia, to the fact that a large majority of French Muslims apparently support restrictions similar to those that would be imposed by Bill 21. They can’t be Islamophobes, can they? This sounds like a good argument, so far as it goes, except that it doesn’t go anywhere that matters. A French Muslim can be as illiberal as a French Canadian lapsed Catholic. For that matter, the judicial darlings of Canada’s bien-pensant multiculturalist intelligentsia have proven themselves quite capable of this sort of illiberalism when then invoked mythical “shared values” to authorize an arm of the state to deny an accreditation to a religious dissenting institution, in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.

It might be odd to say so now, but the debate around Bill 21 shows as well as any other that equality, and its attendant -phobias and -isms, occupy too large a space is our thought and discourse. This is not to say that these things do not matter. But not everything that is wrong in our politics is wrong because it contravenes the value of equality. Nor is anything that does not contravene this value therefore permitted, or anything that supports this value therefore required. It is time we remembered that liberty is no less important ― or, better yet, that we realized that liberty is more important, but I am not asking for everything at once. It is time we remembered that living individuals, not intellectual dreamt-up abstractions or imagined communities, are what really matters. It is time we stopped fearing the way in which others might use their liberty if we do not preemptively coerce them. It is time we were free.

Can an agency choose not to enforce Bill 21?

Last week, the English Montreal School Board [EMSB] announced that it is refusing to to implement Bill 21, introduced by the Quebec government. The law would ban workers in the public sphere in positions of authority from wearing “religious symbols” while at work. The government, apparently cognizant of the challenges this could raise under the Canadian Charter of Rights and Freedoms, signalled its intention to invoke the notwithstanding clause to immunize its law from constitutional scrutiny by the judiciary.

In pre-emptively declining to implement the law, the EMSB invoked constitutional objections under the Charter against the ban:

Vice-Chair Joe Ortona, who drafted the resolution, said that the EMSB believes this proposed legislation would be contrary to paragraph 2 (a) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom of conscience and freedom of religion and contrary to paragraph 2 (b) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom thought, belief, opinion and expression.

Furthermore Mr. Ortona said that the EMSB believes this proposed legislation would be contrary to subsection 15 (1) of the Canadian Charter of Rights and Freedoms which guarantees that everyone is equal before and under the law and guarantees the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on religion and contrary to section 3 of the Charter of Human Rights and Freedoms which guarantees freedom of conscience, freedom of religion, freedom of opinion, and freedom of expression.

Quite aside from the merits of the issue, there is a legitimate question of administrative law, here: can an administrative agency like a school board, empowered by statute, simply decline to enforce a law that it believes is unconstitutional? More specifically, can the agency decline to enforce the law if the law invokes the notwithstanding clause? Whatever the answer is, should agencies be able to come to their own determinations of constitutional law?

The place to start is probably the Martin and Conway line of cases. The core issues in those cases were the conditions under which an administrative agency can choose not to apply statutory provisions in its enabling statute that it considers to be unconstitutional—and if so, whether there is a power to issue personal remedies under the Charter. So these cases go, if an agency has the express or implied power to decide questions of law under the challenged provision (see Martin, at para 37), then it presumptively has the power to determine questions of constitutional law. The implied inquiry looks to a number of considerations (see Martin at para 41):

Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.

The presumption can be rebutted by the party seeking to dislodge the Charter jurisdictional presumption, by pointing to an express or implied withdrawal of authority to decide constitutional questions: the concern is discerning whether there is an intention to “exclude the Charter, or more broadly, a category of questions of law encompassing the Charter, from the scope of the questions of law to be addressed by the tribunal (Martin, at para 42).

So the question at the outset for the EMSB is whether it has been conferred the ability to decide questions of law, either explicitly or impliedly. The enabling statute for the EMSB is the Education Act. Under s.111 of that statute, the province of Quebec is divided into “two groups of territories,” with one group constituting English school boards, like the EMSB. The EMSB, under the statute, is “a legal person established in the public interest” (s.113). There is at least some reason (even if weak) to believe under the Education Act the EMSB has the power to decide questions of law, but only a limited one pertaining to its particular mission under the Education Act. For example, under the statute, the EMSB has the power to “ensure that the basic school regulation established by the Government is implemented” (s.222) and can exempt students from that basic regulation “[f]or humanitarian reasons or to avoid serious harm to a student” (s.222). Assume for now that these rather vague and limited provisions confer a general power to decide questions of law: that general power, interpreted in light of the text, context, and purpose of the Education Act as it relates to school boards, would probably only relate to the organization of quality educational services (s.207.1), although one could argue that the same concern could apply to the context of Bill 21.

Even if this could be seen as an implicit signal of constitutional jurisdiction under the Education Act, it is a bit orthogonal to the core interpretive question. Martin, the key case on point, says that the real question is whether the EMSB has power to decide questions of law under the challenged provision in its enabling statute (see paras 27-28, 35). But here, there is not only no challenged provision yet, but it is not the EMSB’s enabling statute. This presents two further problems: can agencies issue prophylactic constitutional rulings? And even if they can, can they do so by choosing not to apply a statute that is not their enabling statute?

It would seem odd, in light of the Supreme Court’s cases, to suggest that an administrative agency can prophylactically choose not to apply a law that otherwise applies to it. Administrative agencies are creatures of statute, and so are subject to the statutory conditions that the legislature imposes on them. Under Bill 21, the terms of the statute clearly apply to school boards (see Schedule I, (7)). Short of some dispute arising within the confines of the statutory regime created by the Education Act, there does not seem warrant for the EMSB to go out on a limb and refuse to apply a statute that has yet to have created any particular problems within its statutory jurisdiction. This seems to be what Abella J suggested in Conway, where she concluded that tribunals could “have the authority to resolve constitutional questions that are linked to matters properly before them” (Conway, at para 78).

More important than this issue, though, is the idea that the EMSB can choose not to apply a statute that is not its enabling statute. The main Supreme Court cases dealing with this issue, even the ones that predate Martin, involve the enabling statute of the decision-maker under consideration (Conway, at para 49: “These cases dealt with whether administrative tribunals could decide the constitutionality of the provisions of their own statutory schemes.” Consider the cases on this point: in Cuddy Chicks, the issue was whether the Ontario Labour Relations Board could determine the constitutionality of a provision in the Labour Relations Act. In Martin, the question was whether the Nova Scotia Workers’ Compensation Appeals Tribunal could decide a s.15 Charter claim under the Workers’ Compensation Act and associated regulations. All of these cases involved claims tied to the regime under which the decision-maker was established, with cases “properly before them.” And this makes sense: it would be odd for Parliament to delegate power to an administrative agency, confined by a statutory scheme, to pass on the constitutionality of other statutory provisions that may only tangentially be related to the part of the Education Act (for example) that the EMSB must apply.

Even if none of this were true, the notwithstanding clause effectively limits any independent choice an agency could have about the constitutionality of the statute under which it is invoked. For one, even if one could impute an intention to the legislature that presumptively allows the EMSB to make constitutional determinations, the notwithstanding clause is a good reason to say that the legislature has rebutted that presumption with respect to the particular category of question at issue here: this is the upshot of Martin and Conway. More fundamentally, a use of the notwithstanding clause cannot be legally questioned by any actor in the system, including the judiciary. The EMSB cannot legally second-guess the choice of the provincial government (its master) to insulate legislation from constitutional scrutiny. The invocation of the notwithstanding clause flows down the entire machinery of the state, and whether we like it or not, its use is legally justifiable by the fiat of the legislature.

To my mind, the use of the notwithstanding clause also renders null any arguments that one could make that the EMSB is justified in its prophylactic ruling because of an abstract notion of “Charter values.” Despite the fact that the spectre of Charter values is increasingly being called into question, and the precedential force of cases like Trinity Western should be questioned because of the lack of reasoning on the point (see, embarrassingly for the TWU majority, para 59), the notwithstanding clause is a legislative command that compels executive actors to ignore the Charter when implementing the law in question. There would be no point in invoking the notwithstanding clause if administrative actors could choose to “independently” opine on the constitutionality of laws in the face of it. The lightning rod for a consideration of Charter values is discretion, and the notwithstanding clause neutralizes any discretion at all on the constitutional question.

To my mind, there is little warrant for the EMSB to prophylactically say it will not enforce Bill 21, given its limited statutory domain and the use of the notwithstanding clause. And this is likely how it should be. It is one thing for an administrative agency, when implementing a statute in the context of a concrete dispute, to have to pass on the constitutionality of a statutory provision—in its own statute—in order to resolve the dispute. In that case, there are at least colourable reasons why the agency should have the power to do this: if one believes in the idea that agencies have expertise on matters arising within the confines of their statute, one could say that they could also have expertise on Charter matters arising in relation to that same statute. One could also say that the legislature delegated to the agency the power to make Charter determinations, even through the imperfect proxy of a general power to decide questions of law. These same justifications lose their force when considering statutory provisions outside the enabling statute. While Bill 21 certainly does affect the realm of the EMSB, the EMSB is not conferred a general power to make constitutional determinations arising under other statutes.