Tag: Québec

If It’s Broke, You’re Not the One to Fix It

The Québec Court of Appeal takes it upon itself to update obsolete election legislation. That’s not its job.

This post is co-written with Mark Mancini

One of us (Sirota) has written any number of times about Québec’s Election Act, which is remarkable by the staggering restrictions it imposes on election campaigns and by its drafting that has, on many points, not been updated this century. This combination of severity and obsolescence leads to all manner of controversy and problems in the Act’s application. A recent decision of the Québec Court of Appeal, Therrien c Directeur général des élections du Québec, 2022 QCCA 1070, illustrates this. 

At issue in Therrien was s 429 of the Act, which provides that, in the week after the writ for an election

is issued, no person, except the Chief Electoral Officer [CEO], may broadcast or cause to be broadcast by a radio or television station or by a cable distribution enterprise, publish or cause to be published in a newspaper or other periodical, or post or cause to be posted in a space leased for that purpose, publicity relating to the election.

As the Court (Justice Cournoyer writing with the agreement of Justice Dutil; Justice Fournier, who had also been on the panel, passed away before the decision was issued) recognizes, “when s 429 … was amended in 1995, social media did not exist. … The ordinary meaning of the words ‘post’ and ‘space leased’ could not envision virtual reality, be it virtual posters or virtual spaces”. [62]-[63] (We translate here and throughout.) The question was whether s 429 nonetheless applied to prohibit advertising on Facebook, such as an ad that the CAQ, for which the appellant was the social media manager, took out in the first week of the 2014 election campaign.

2014, you might think, is a long time ago. We’ll return to this below. You might also think that s 429 is unconstitutional. We are inclined to think so too. In Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, the Supreme Court struck down a publication ban on polls for part of an election campaign, and a part both more sensitive and shorter than the one at issue here, namely the last three days. It is hard to argue that a ban on some advertising in the campaign’s first week is more justified, although perhaps a court would accept that it is necessary to maintain fair electoral competition. But the issue does not seem to have been raised in Therrien, which is a pure case of statutory interpretation. The Court observes that the issue of the applicability of a provision to circumstances that were not and could not have been anticipated at the time of its enactment is “a classic in statutory interpretation, but its solution, as this case shows, is not always obvious”. [9] With this much we agree. The Court’s solution in this case is that s 429 does apply to social media advertising. This we believe is wrong, in light of the―to repeat, obsolete―drafting of the Act.

The Court begins by interpreting s 429 on its own terms. Its effect is to ban some―though not all―political advertising in the first week of an election campaign. Its purpose, inferred from what it prohibits, is “to foster fairness and equality among all political parties at the outset of an election campaign”, [54] by preventing the incumbent from getting a jump-start on its competitors. As the Court notes, fixed election dates weren’t in place when s 429 was enacted.

Inferring this purpose from the mischief sought to be remedied is an unremarkable tool of interpretation, but in this case, we fear the Court’s analysis is backwards. It may be true that the purpose of the provision is to foster fairness and equality at the outset of the campaign. But this purposive analysis must build on convincing evidence in the text and the choices reflected in that text. In this sense, the Court’s analysis is flipped. At a number of points, it puts no weight on the ordinary, accepted meaning of the text, seemingly allowing the Court’s own view of the statutory purpose to drive the analysis. 

This leads the Court down the incorrect path. Drawing on Perka v R, [1984] 2 SCR 232 and R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575, it states that while a statute’s terms are to be given the meaning they had at the time of their enactment, they “must not necessarily be confined to their original meaning” [65] at that time. What this means is that statutory language, provided it is sufficiently general, can be applied to facts and phenomena that weren’t or couldn’t be contemplated when it was enacted. But the focus of the analysis must be on the language used in the statute, and whether it could conceivably cover the phenomenon at issue. The issue, then, is “whether the text of s 429 prevents its extent to virtual posting in a virtual space”. [67]

The Court is right to cite these authorities at the outset, for they confirm the basic rule: the original meaning of statutory terms governs. This point was expressed most recently in R v Kirkpatrick, 2022 SCC 33, in the concurring opinion of Coté, Brown, and Rowe JJ. The concurrence articulated the accepted rule, unchallenged by the majority:  “[i]t is a fundamental error to apply the ‘living tree’ methodology to the interpretation of statutes” [55]. But the Court of Appeal disregards the basic principle it cites. Rather than asking whether the words can bear the “adaptation by the courts of general concepts to these new realities” [68], it expressly concludes that the meaning of the words “post” and “space leased” “could not contemplate virtual reality” [63]. It then moves to conclude that the terms “post” and “space” “do not prevent their application to the virtual dimension specific to social networks” [67].

Here both the method and the conclusion are faulty. As we note, the accepted method asks whether the provision, in its purposive context, can accommodate the new technological developments. The Court, instead, reasons backwards: instead of asking “does this provision apply?”, it asks “why wouldn’t this provision apply?”. This is inappropriate on several grounds.  Most basically, it is always for the party alleging that a provision applies―here, the CEO―to prove that this is so, and for good reason. Legislators who vote for legislative proposals do not and cannot time travel. The reach of statutes is fundamentally limited by their wording. By failing to positively affirm that a provision applies in a given circumstance, the Court distorts the reach of the law to cover phenomena that the text simply may not support. This, as we shall see, is an unacceptable form of spurious interpretation.

There are other normative reasons to reject the Court’s interpretation. Since the provision at issue is a penal one and restricts political speech, both the rule of lenity and the principle of legality counsel against applying it to doubtful or borderline cases. And substantively, the idea of a “virtual space” isn’t just a novel application of the existing concept of a space in the way that, say, same-sex marriage is a new application of the old concept of marriage. It is a metaphor and cannot do the work the Court wants it to.

The Court’s so-called purposive approach is also left wanting on its own terms, as it fails to have proper regard to the legislative context and to show why the purpose of the provision compelled its chosen interpretation. Consider the Court’s analysis of the history of s 429. In Frank v Canada, 2019 SCC 1, [2019] SCR 3, the dissenting opinion (unchallenged on this point), noted that “[t]he state of the law as it existed prior to an impugned provision coming into force can…give insight into why the provision was enacted” [131]. This, of course, is one way to discern the meaning of text; changes in wording can indicate changes in legislative purposes (as opposed to inferences based on what a legislature did not do).  In this case, the appellant sought to draw the Court’s attention to the fact that s 429’s predecessor provisions were phrased in general terms and did not specify particular forms of advertising prohibited in the early campaign, arguing that the legislature’s choice to now ban some forms of ads and not others had to be respected. The Court simply isn’t interested: “the history of the amendments to s 429 does not matter as much as the parties think in interpreting its text”. [55] In our view, this is a mistake. As noted in the Frank dissent, the history of a provision can often illuminate the textual means by which a legislature was attempting to solve a particular mischief. If the appellant is right (and the Court does not even bother setting out the previous version of s 429, so we cannot tell), his argument deserved to be taken seriously.

The Court goes on to add that its interpretation of s 429 is in agreement with that of the CEO, which can be taken into account without being binding. It is a bit difficult to say how much this argument influenced the Court―it is probably not a major factor in the decision. But any reliance on it is, nonetheless, disturbing. A court would not take special notice of the police’s interpretation of the Criminal Code. There is no reason to treat an administrative enforcement agency with any more indulgence. (It is telling, too, that the case on which the Court relies here, Cayouette c Boulianne, 2014 QCCA 863, is at root a dispute among neighbours, which turns on the meaning of a municipal by-law. Giving some weight to the municipality’s views in that context is not nearly as problematic as doing that when the administrator is the prosecutor.)

All in all, the Court’s analysis on this point is backwards as a matter of method, but the result is also problematic. Some may ask why the original meaning rule should be followed in a case like this, where new technological problems are so evident. The answer relates to the point of statutory interpretation. The job of courts is to interpret the text through which legislatures seek particular objectives (MediaQMI v Kamel, 2021 SCC 23, [39]). The text discloses how a legislature wanted to achieve its ends. By updating the statute for the legislature, the Court assumes that the legislature (a) wants its law extended; and (b) wants the law extended in this particular manner. It deprives the legislature—the exclusive law-maker—of the opportunity of creating a new regime that balances on- and offline expression. Citizens can rightly begin to question where the law is made.

The Court also accepts an alternative argument based on the effect of Québec’s Act to establish a legal framework for information technology (IT Framework Act) on s 429. In a nutshell, this law is meant to ensure that digital documents are treated the same as their analogue counterparts for various purposes. Documents are defined as follows, in s 3 of the IT Framework Act:

Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

Moreover, pursuant to s 71

The concept of document, as used in this Act, is applicable to all documents referred to in legislative texts whether by the term “document” or by terms such as act, deed, record, annals, schedule, directory, order, order in council, ticket, directory, licence, bulletin, notebook, map, catalogue, certificate, charter, cheque, statement of offence, decree, leaflet, drawing, diagram, writing, electrocardiogram, audio, video or electronic recording, bill, sheet, film, form, graph, guide, illustration, printed matter, newspaper, book, booklet, computer program, manuscript, model, microfiche, microfilm, note, notice, pamphlet, parchment, papers, photograph, minute, program, prospectus, report, offence report, manual and debt security or title of indebtedness.

The Court holds that

the concept of document necessarily includes virtual posts, because the posts consist of information inscribed on a medium which has the same legal significance if it includes the same information, regardless of the medium … In this respect, “to post” or “cause to be post” includes the use of a medium on which information is inscribed, i.e. a document within the meaning of s 3.  Meanwhile … the absence of words “poster”, “post”, or “cause to post” from the list in s 71 is of no consequence. The use of the phrase “such as” to introduce the list of many types of document is clearly aimed at excluding any restrictive interpretation of the term document, as defined in s 3. [86]-[87] (Paragraph break removed)

Here too we are not persuaded. For one thing, open-ended though it may be, we do not think that the IT Framework Act’s definition of a document extends to virtual posts, or any other media of a broadcast nature. The IT Framework Act’s purpose provision, s 1, refers to “documentary communications between persons, associations, partnerships and the State”. Elsewhere, the IT Framework Act speaks of documents producing “legal effect” or having “legal value” (e.g. ss 5 and 9). A poster―or a radio or TV ad―aren’t “documents” within the IT Framework Act’s meaning any more than in ordinary language.

Section 71 supports this view, although of course the Court is right that its enumeration is not strictly speaking closed. It is, however, remarkably exhaustive (which is why we thought it worthwhile to reproduce it above). And, tellingly, while it does include audio and video “recordings”, it does not include broadcasts. Considering the exhaustiveness, the fastidiousness even, of the enumeration, we do not think the omission is accidental or that it can be gotten around by relying on the “such as” language. This might not be the proverbial elephant, but we do not think the National Assembly hid a beaver in s 71’s mousehole. At minimum, the Court had to explain in what sense a virtual post is “such as” the objects enumerated in s 71, and it does not do this.

So much for Therrien itself. But we think it is important to point out that it is not an isolated case, but rather part of a pattern of very questionable decision-making by both the Québec Court of Appeal and successive CEOs with respect to the Act, which is in dire need of reform. In effect, those in charge of administering the Act are trying to maintain or even extend its reach while avoiding, on a case-by-case basis, consequences they find intolerable.

So far as the Court of Appeal is concerned, we have in mind the decision in Métallurgistes unis d’Amérique (FTQ), section locale 7649 c Québec (Directeur général des élections), 2011 QCCA 1043, which upheld the Act’s draconian restrictions on “third party” political spending. In that case, a union was fined for criticizing a political party in communications addressed to its own members. More generally, individuals who are not candidates and unincorporated groups are limited to spending 300$ on election advertising. Corporations, including not-for-profit ones, are prohibited from spending a penny. This is difficult to reconcile with the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), [2004] 1 SCR 827, which recognized the right of “third parties” to engage in electoral advertising even as they also accepted the principle that such advertising can be strictly limited.

As for the CEOs, they attempted to censor “third party” interventions in each of the last two election campaigns ― that of a group opposed to the then-proposed “Charter of Values” in 2014 and that of environmentalist NGO Équiterre in 2018 ― provoking a public outcry. In 2014, the then-CEO flip-flopped and ended up withdrawing his objections. The 2018 story has only concluded recently (egregious delay is also, it seems, a pattern with the CEO), as Laura Lévesque and Thomas Laberge report in Le Soleil. The CEO has “blamed” and warned Équiterre but apparently not fined it. Yet as Sirota wrote at the time, the CEO was right to find fault with the campaigners on both occasions.

As further discussed in this post on the 2014 climb-down, the then-CEO reinterpreted the relevant provisions in a way that may have been sensible in light of the social and technological change since their enactment, as well as protective of the freedom of expression, but was not tenable in light of their text. The choice of merely “blaming” Équiterre is also, at first glance, understandable on the merits but not something provided for by the Act, except presumably as an exercise of an implicit prosecutorial discretion. In effect, the CEO is deciding what the Act means and when―and his decision to go easy on fairly clear violations by NGOs while prosecuting a debatable one by a political party is worth highlighting.

All this suggests, unequivocally to our mind, that the Act needs to be reformed so as to accommodate the social and technological realities of the 21st century. As it happens, the Canadian Press’s Jocelyne Richer reports that the CEO wants the Act to be “updated”―but mainly so as to introduce even more restrictions, specifically on advertising during the “pre-campaign” period. (In fairness, he was already asking for such an “update” in 2016. So far, the National Assembly has not obliged.) Parliament has added such restrictions to the Canada Elections Act some years ago, and Ontario has used the Charter’s “notwithstanding clause” to extend its censorship regime, which now covers more than one year in every four.

These rules are bad and possibly unconstitutional, as Sirota argued here and here. But, quite apart from their other problems, they would hit especially hard in Québec unless the Electoral Act’s existing strictures are relaxed to some degree, and also unless it is re-drafted so as to be technologically neutral to the extent possible. In the meantime, however, it is not the role of either the CEO himself or the courts to fiddle with the Act to make it work better. The law is broke, but they are not the ones who have the tools to fix it.

It Ends Well

Thoughts on the Supreme Court’s narrow but seemingly decisive rejection of a right not to be offended

Last week, the Supreme Court delivered its judgment in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. By a 5-4 majority, it quashed an award of damages a human rights tribunal had granted to Jérémy Gabriel, a child celebrity, whom a well-known comedian, Mike Ward, had cruelly mocked. As Jen Gerson and Matt Gurney put it in The Line’s editorial (possibly paywalled, but you should subscribe!)

Ward … decided to become That Asshole, the edgelord comedian who pointed out that the kid wasn’t very good. In a few stand-up bits, Ward called the child ugly, and noted that the performances were tolerable only because he thought the singer’s condition was terminal. Nice guy. (Paragraph break removed)

The tribunal, and the Québec Court of Appeal found that this amounted to discrimination in the exercise of Mr. Gabriel’s right to “the safeguard of his dignity” under section 4 of Québec’s Charter of Human Rights and Freedoms, a.k.a. the Québec Charter. The majority of the Supreme Court resoundingly holds otherwise.

Instead of my usual blow-by-blow summary and comment, I will offer some more condensed thoughts on a few striking aspects of this case. While the most important thing about Ward is what, if anything, it means for the freedom of expression, there are a few other things to mention before I get to that. In this post, I mostly focus on the majority opinion. I will shortly post separately about the dissent.

The Human Face

Because I will argue that the majority decision is correct, and indeed that it was very important that Mr. Gabriel not win this case, I want to start by acknowledging that he has had it very hard. Mr. Ward’s jokes at his expense were cruel. Mr. Gabriel did suffer, greatly ― we are told that he even tried to kill himself at one point. I think we can wonder whether the connection between these things is all that strong. I’m not persuaded by the dissent’s imputation to Mr. Ward of the full responsibility for Mr. Gabriel’s bullying by his classmates. We can also argue that anti-discrimination law ― perhaps any law ― isn’t the solution. But we have to recognize that a person has been in a lot of undeserved pain, and a person who, even before this case, had not had it easy in life.

The Court

As already noted, the Court is narrowly divided. The Chief Justice and Justice Côté write for the majority, with Justices Moldaver, Brown, and Rowe concurring. Justices Abella and Kasirer write for the dissent, joined by Justices Karakatsanis and Martin. For those keeping score at home, this is the exact same alignment as in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. Indeed, even the authorship of the opinions overlaps: in City of Toronto, the Chief Justice wrote with Justice Brown, while Justice Abella wrote for the dissenters.

I’m old enough to remember, as they say, how smugly self-satisfied Canadian commentators were, just a few years ago, at the consensus reigning at our Supreme Court, in contrast to the US one always splitting 5-4. To be sure, two cases do not make a trend, but I think it’s pretty clear that on the Supreme Court as it has recently been constituted there is ― though there are always exceptions ― a somewhat cohesive group consisting of Justices Côté, Brown, and Rowe, and perhaps an even more cohesive group led by Justice Abella, with Justices Karakatsanis, Martin, and Kasirer. The Chief Justice and Justice Moldaver are the swing votes. It remains to be seen how, if at all, Justice Abella’s retirement is changing this, but in the meantime, our Supreme Court has been fractured along lines that can be predicted. This is not necessarily bad. But let’s not be smug.

One odd thing to add is that, whereas in City of Toronto majority and dissent were ― by the standards of the Supreme Court of Canada ― at each other’s throats, here they studiously ignore one another. I’m not sure which is better, but the contrast between cases argued and decided just a month apart, by identical alignments, and with overlapping opinion authorships, is striking.

The Case

One uncomfortable question I have is: should the Supreme Court have taken this case at all? Let me take you straight away almost to the end of the majority judgment, where we learn, for the first time, the following

[I]n light of the Tribunal’s finding that Mr. Ward [translation] “did not choose Jérémy because of his handicap” but rather “because he was a public personality” (Tribunal reasons, at para. 86), it must be concluded that the distinction was not based on a prohibited ground. This conclusion on its own is sufficient to dispose of the appeal. [91]

Everything else that the Court has said and that I’m about to discuss ― that’s just obiter dicta. The tribunal made a basic logical mistake, which, as the majority explains, the Court of Appeal then glossed over. That was, of course, unfortunate. But it’s not the Supreme Court’s role to correct basic logical mistakes by tribunals or even courts of appeal. They’re there to develop the law. And develop the law they do ― in a way that, if the majority is right (and I think it is), was pressing and necessary. But also in a way that, by the majority’s own admission, is beside the point in this case.

I think this raises the issue of the Supreme Court’s role in our constitutional system. Where is the line between developing the law in deciding cases, as we expect them to, and developing the law by making big pronouncements that are unnecessary to decide cases? Should a court refrain from doing the latter, or may it properly seize on the opportunities that present itself to it to provide important guidance to lower courts? I have no firm views on any of this, but I think the questions are worth thinking about. (For some related musings, see here.)

Jurisdiction

Back to the very beginning of the majority’s reasons:

This appeal … invites us … to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse … and the Human Rights Tribunal … with respect to discrimination claims based on the … Quebec Charter. [1]

Clarify the… what? Yes. That word. The majority uses it several times in the course of its reasons. In particular, it speaks of “the distinction that must be drawn with respect to jurisdiction over, on the one hand, an action in defamation and, on the other, a discrimination claim in the context of the Quebec Charter“. [22]

This is odd. A mere two years ago, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, all of the Ward majority judges signed an opinion that not only eliminated jurisdictional questions as a distinct category of correctness review, but seemed to endorse scepticism at the very “concept of ‘jurisdiction’ in the administrative law context”. [66] Vavilov said that what might previously have been thought of as jurisdictional questions are legal questions like all others, subject to reasonableness review, except when the respective jurisdictions of two administrative bodies must be demarcated.

One recent example of this reasoning is the decision of the Ontario’s Superior Court of Justice in Morningstar v WSIAT, 2021 ONSC 5576, about which I have written here. The Court roundly rejected the argument that, as I summarized it

the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by hav[ing] the court ensure the boundary is drawn correctly.

I thought ― and still think ― that that was a correct application of Vavilov. Ward, though, says that there is indeed a jurisdictional boundary between administrative tribunals and courts. I don’t think this is consistent with Vavilov. Nothing turns on this here because the case gets to the courts by way of statutory appeal rather than judicial review, and ― under Vavilov ― the correctness standard applies to all legal questions in such circumstances. But the tensions inherent in Vavilov, including in its attempt to rid Canadian administrative law of the fundamental concept of the law of judicial review are becoming apparent. (Co-blogger Mark Mancini has made a similar observation in the latest issue of his newsletter.)

Interpretation

One of the things the majority is right about is that Ward is, among other things, a case about interpretation. It requires the courts to make sense of a somewhat peculiar statutory scheme, which protects, among other things, rights to the freedom of expression and to the “safeguard of [one’s] dignity”, says that “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law”, and protects equality in “the exercise and recognition” of these rights, rather than as a general self-standing right. This is not an easy exercise and I won’t go into all the details, but I will make a few comments.

The majority deserves credit for trying to work out an independent meaning for the right to the safeguard of one’s dignity. As it notes, dignity is a very tricky concept ― and the Supreme Court itself has tried to avoid putting too much weight on it in other contexts. But here it is, in the text of the Québec Charter, a statute that binds the courts. It will not to do to simply find violations of dignity when other rights are violated in particularly egregious ways, as Québec courts had done. The Québec Charter makes it a distinct right, and the courts must treat it as such. At the same time, they have to give it defined contours. The majority seeks to do so by stressing the importance of the safeguard of dignity, to which the right is directed:

Unlike, for example, s. 5 [of the Québec Charter], which confers a right to respect for one’s private life, s. 4 does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denial of their worth as a human being. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society. [58]

What the majority does is a careful and, I think, pretty convincing reading of the statutory text. Good.

Some things the majority says are not so good. For instance: “the interpretation of this provision must be refocused on its purpose by considering its wording and context”. [55] No, no, no. Interpretation should be focused on text understood in context. Purpose can sometimes help a court understand the words and enrich its understanding of the context, but it should not be the focus of interpretation. And then, there is this:

This Court’s jurisprudence also establishes “that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes” … It follows that, as long as this is not contrary to the usual rules of interpretation, symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable. [68; quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City), 2000 SCC 27, [2000] 1 SCR 665, [47]]

What are we to make of this? If usual rules interpretation are to prevail, differences in terminology must make a difference, if not to the objectives then to the effects of human rights as of any other statutes. And the idea that differences in wording don’t matter because objectives are key to interpretation is specifically rejected in the majority opinion in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 ― signed onto by the same five judges who are in the majority in Ward (even as it is endorsed by the concurrence).

Between the jurisdiction issue and this, I cannot help but wonder whether their Lordships remember what they said last year. Or are they trying to say that we are supposed not to? This stream of inconsistent pronouncements ― by the same people! ― reveals, at best, a lack of attention to legal doctrine and craft. It is very disappointing.

Freedom of Expression

I finally come to the meat of the case. Here too, I want to praise the majority for getting things fundamentally right, but also to criticize them for saying things along the way that are doubtful or even wrong in themselves, or inconsistent ― without explanation ― with important precedent.

Let me start with a quick note from the “judges are not philosophers” file. The majority’s discussion of the freedom of expression begins with the assertion that it, “[l]ike the right to the safeguard of dignity … flows from the concept of human dignity”. [59] Perhaps. But in the next paragraph the majority quotes Joseph Raz’s claim that “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected”. [60] These are two quite different views of the foundations and purposes of the freedom of expression ― one deontological, the other utilitarian. Perhaps nothing turns on which of these is correct in this case, but if so, the majority shouldn’t be making these philosophical declarations at all. And I suspect that in some cases the choice might actually make a difference. The majority’s approach is muddled and unhelpful.

Now for some good things. This, especially: “freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say”. [60] This is the key to so many disputes about freedom of expression. Speech is not harmless. It can hurt. It can propagate falsehoods. It can inflame base passions. But freedom of expression means sometimes having to tolerate such things ― just like freedom of assembly means having to tolerate noisy protests, and freedom of religion means having to tolerate heresy and blasphemy ― even when their cost falls on particular groups or even individuals.

The majority adds that “[l]imits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience”. [61] This sets a fairly high bar to limits that will be considered justified. It also acknowledges that the audience has its share of responsibility in appreciating troublesome words. Courts assessing a limit on the freedom of expression should not assume that citizens are, by default, unthinking and gullible playthings for the tellers of tall tales. This is also good and important. Assuming away all critical sense among the citizens would help justify all kinds of restrictions on speech, including, and perhaps especially, in the political arena. It is fundamentally incompatible with the notion of a self-governing, responsible citizenry.

But this insistence sits uneasily, to say the least, with the Court’s position in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. There, the majority said that

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm. [77]

This is contrast to the Harper dissent’s concern that “[t]here [was] no demonstration that” the limits on “third party” spending at issue were “required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair”. [38] By my lights, Ward‘s insistence on serious reasons to fear specific harm, as well as on audience discernment is much more in tune with the Harper dissent. Because I regard Harper as an abominable decision, I am happy to see Ward go in a different direction. But there is no comment in Ward on how these cases interact. Again, it’s as if the judges don’t remember what the law says, though at least Harper is a much older case that Vavilov and Québec Inc.  

All that said, the substance of the majority’s decision is right and reassuring (or it would be reassuring if more than five judges had signed on). The majority insists that the right to the safeguard of one’s dignity most not be “vague” or given “a scope so broad that it would neutralize freedom of expression”. [80] It stresses the objective nature of the test for whether this right is breached and rejects the modified objective standard of “a reasonable person targeted by the same words”, because “[t]hat approach results in a shift toward protecting a right not to be offended, which has no place in a democratic society”. [82] What matters is neither “the repugnant or offensive nature of the expression [nor] the emotional harm caused”, [82] but the effect of the words on listeners: would “a reasonable person, aware of the relevant context and circumstances, … view the expression … as inciting others to vilify [its targets] or to detest their humanity on the basis of a prohibited ground of discrimination” [83] and would “a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted”? [84]

All this is the more important since the list of prohibited grounds of discrimination under the Québec Charter is very broad and includes “political convictions”. As I have written here, “even if we accept the need to protect vulnerable minorities from hate speech targeting them, I struggle to see what makes it necessary to extend this protection to members of political parties or movements”. Protecting people from mockery, let alone hurt feelings, based on their political views is incompatible with lively democratic debate. However much we can wish for such debate to usually be civil, I think it’s a mistake to insist that it always must be, and certainly a grave mistake to put government officials in charge of deciding whether it is sufficiently civil on any give occasion.

The insistence on the need for objective assessment and the clear rejection of a right not to be offended will, I hope, be the key takeaway from Ward. For them, we can forgive the majority opinion its many flaws. That there can be no right not to be offended in a society that proclaims its commitment to the freedom of expression and to democracy might have been self-evident ten years ago, but it evidently isn’t anymore. The dissent offers us a glimpse of what a world in which this truth isn’t recognized looks like. I will focus on it in a forthcoming post.

La Constitutionnalité de l’application de la Loi 101 aux entreprises fédérales

Le 18 août dernier, le ministre responsable de la Langue française, M. Simon Jolin-Barette, a annoncé qu’il souhaitait voir la Charte de la langue française appliquée aux entreprises sous juridiction fédérale. Une telle mesure forcerait notamment les entreprises fédérales à obtenir un certificat de francisation et à se soumettre à une série d’obligations destinées, comme l’indique le préambule de la Charte, à faire du français « la langue normale et habituelle du travail, […] des communications, du commerce et des affaires ». On estime qu’au Québec, 135 000 travailleurs du secteur privé ne sont ainsi couverts ni par la Charte de la langue française, ni par la Loi sur les langues officielles. Or, cette proposition soulève de sérieux doutes quant à sa constitutionalité, notamment quant à savoir si l’Assemblée nationale a le pouvoir législatif nécessaire pour procéder seule à cet amendement. 

L’Assemblée nationale peut-elle procéder seule?

Tout d’abord, il ne fait aucun doute que les « institutions fédérales » comme les départements gouvernementaux ou les sociétés d’état fédérales qui, elles, sont déjà encadrées par la Loi sur les langues officielles, ne sauraient en aucun cas être visées par la législation provinciale. Le chapitre V de la Loi sur les langues officielles établit un régime juridique qui garantit le droit de travailler dans l’une ou l’autre des deux langues officielles. Il s’agit là d’un cas clair de prépondérance fédérale, en vertu de laquelle une loi fédérale valide rend inopérante une loi provinciale autrement valide avec laquelle elle est en conflit. 

En ce qui a trait aux entreprises sous juridiction fédérale comme les banques, les entreprises ferroviaires, maritimes, de transport interprovincial et de télécommunications, il est fort probable que les tribunaux jugent que leur assujettissement à des mesures réglementaires linguistiques excède la juridiction de la province. Tel qu’indiqué dans Devine c Québec (procureur général), [1988] 2 RCS 790, la juridiction sur la langue, qui n’est pas explicitement prévue au partage des compétences de 1867, doit être rattachée à un champ de compétence. La langue de travail est considérée par la jurisprudence comme relevant des relations de travail. Ainsi, dans les dernières décennies, plusieurs décisions ont confirmé la compétence fédérale en matière linguistique au sein des entreprises fédérales ainsi que l’inapplicabilité de la Charte de la langue française aux entreprises fédérales situées au Québec, dont Joyal c Air Canada, 1976 QCCS 1211 à la p 1230 et Association des Gens de l’Air du Québec Inc. c Lang, [1977] 2 CF 22 au para 39, ainsi que plus récemment Girard c Telus Québec inc., 2006 QCCRT 236 et Léveillé c Conseil canadien des Teamsters, 2011 CCRI 616.

Or, des auteurs ont récemment affirmé que des revirements jurisprudentiels en matière d’exclusivité des compétences justifiaient un changement de paradigme sur cette question. Se basant sur l’arrêt Banque canadienne de l’Ouest c. Alberta, 2007 CSC 22, ils affirment que, du fait que la doctrine d’exclusivité des compétences ne s’applique que lorsqu’une mesure législative entrave le contenu « essentiel » de la compétence de l’autre ordre de gouvernement, la Charte de la langue française peut être appliquée aux entreprises fédérales. Pourtant, ce raisonnement ne tient pas la route et ce, pour deux raisons. D’abord, il fait abstraction de la jurisprudence pertinente en la matière. Ensuite, il sous-estime l’impact qu’a la Charte de la langue française sur les activités habituelles d’une entreprise.

Premièrement, pour conclure que la Charte de la langue française peut s’appliquer à des entreprises fédérales, ces auteurs écartent une importante décision, NIL/TU,O Child and Family Services Society c B.C. Government and Service Employees’ Union, 2010 CSC 45. Dans cette affaire, la Cour suprême tranche que le test de l’exclusivité des compétences n’est pas approprié pour examiner les questions de compétences en matière de relations de travail, lui préférant un test en deux étapes. La première étape est le test du « critère fonctionnel ». Il faut alors examiner la nature de l’entité, son exploitation et ses activités habituelles pour voir s’il s’agit d’une entreprise fédérale. Dans un tel cas de figure, les relations de travail seront assujetties à la réglementation fédérale plutôt qu’à la réglementation provinciale. Si – et seulement si – la première étape du test n’est pas concluante, il faut alors se tourner vers la seconde et se demander si la mesure proposée entrave le cœur de la compétence fédérale. 

En l’espèce, il ne fait aucun doute que l’application du test du « critère fonctionnel » mine toutes les chances de Québec de voir la Charte de la langue française être appliquée aux entreprises fédérales. Pas question ici de se demander si la Charte de la langue française entrave le contenu « essentiel » du chef de compétence fédéral. Le simple fait que les activités habituelles des entreprises fédérales soient justement de nature fédérale suffit à les soustraire à l’application de la Charte de la langue française.

Deuxièmement, même si c’était le test de la doctrine de l’exclusivité des compétences qui devait être retenu, il est clair que la Charte de la langue française entrave le « contenu essentiel » des champs de compétence fédéraux correspondants, comme la poste, les banques, le transport interprovincial, la navigation, etc. Le critère de l’entrave n’équivaut pas à une paralysie ou une stérilisation selon Rogers Communications Inc. c Châteauguay (Ville), 2016 CSC 23au para 70. Ainsi, dans Banque de Montréal c Marcotte, 2014 CSC 55 au para 66, la Cour suprême du Canada laisse entendre qu’une loi provinciale sera déclarée invalide si elle «restreint» les activités d’une entreprise fédérale. Or, la Charte de la langue française est on ne peut plus intrusive. Elle exige des entreprises qu’elles se soumettent à une analyse étendue de leurs activités (art 141). Elle régit notamment la langue de communication d’un employeur avec ses employés (art 41), des offres d’embauche et de promotion (art 41), des conventions collectives (art 43), interdit de congédier, de mettre à pied, de rétrograder ou de déplacer un employé qui ne parle pas assez bien une langue autre que le français (art 45), interdit d’exiger à l’emploi une langue autre que le français si ce n’est pas nécessaire (art 46), etc. De plus, le fait pour une entreprise de ne pas se plier aux exigences de la Charte de la langue française peut être lourd de conséquences. La politique gouvernementale en matière linguistique prévoit que les entreprises de 50 employés et plus qui ne possèdent pas de certificats de francisation ne se verront accorder ni contrat, ni subvention, ni avantage par l’administration publique. De plus, les amendes prévues à la Charte de la langue française pour une première infraction peuvent aller jusqu’à 6 000$ pour un particulier et jusqu’à 20 000$ pour une entreprise (art 205).

Existe-t-il des alternatives?

Ainsi donc, si la réglementation linguistique des entreprises fédérales relève du Parlement, comment le gouvernement québécois pourrait-il s’y prendre pour faire appliquer la Charte de la langue française aux entreprises fédérales? 

Premièrement, certains auteurs ont suggéré que le Parlement pourrait déléguer aux provinces son pouvoir législatif en matière linguistique. Toujours selon ce courant de pensée, le gouvernement du Québec pourrait demander au Parlement de lui déléguer son pouvoir de réglementer l’utilisation de la langue française au sein des entreprises fédérales. Or, il semble que ce raisonnement soit erroné. En effet, s’il est vrai, comme le font remarquer ces auteurs, que le Parlement peut légitimement déléguer ses pouvoirs réglementaires linguistiques à un territoire comme il l’a fait pour le Nunavut, la délégation aux provinces de pouvoirs législatifs est proscrite par les tribunaux depuis Nova Scotia Inter-delegation, [1951] SCR 31. 

Deuxièmement, Québec pourrait demander au Parlement qu’il incorpore à sa propre législation un renvoi à la Charte de la langue française. Cette façon de procéder a été reconnue comme étant valide par les tribunaux canadiens depuis Coughlin v Ont. Highway Transport Bd., [1968] SCR 569. En vertu de cette méthode de référencement, toute modification ultérieure de la Charte de la langue française par l’Assemblée nationale s’appliquerait immédiatement et automatiquement aux entreprises fédérales en vertu de A.G. for Ontario v Scott, [1956] SCR 137. Il s’agit là d’une façon de procéder plus respectueuse des principes de droit constitutionnel canadien, mais aussi de celle qui requiert le plus de volonté politique. La Charte de la langue française a toujours fait l’objet d’un feu nourri de critiques au Canada anglais et il serait plutôt surprenant de voir le gouvernement fédéral l’adopter implicitement en y faisant référence dans sa propre législation. D’ailleurs, si le Parti Conservateur, le NPD, le Bloc Québécois et le Parti Vert s’étaient engagés aux dernières élections à faire appliquer la Charte de la langue française aux entreprises fédérales conformément à la demande du premier ministre du Québec, le Parti Libéral, lui, n’avait pas fait de même. Justin Trudeau s’était d’ailleurs opposé par le passé à un renforcement de la Charte. Parions que des discussions musclées sont à venir dans les prochains mois entre Ottawa et Québec.

The Five-Judge Myth

How many Supreme Court judges does it take to decide a civil law appeal?

By Peter McCormick

A defining aspect of the Canadian legal system is its bijuralism: Quebec’s civil law system is distinctly different from the English-derived common law of the other provinces. The federal-provincial division of powers which assigns to the provincial legislatures jurisdiction over “property and civil rights within the province” is its formal entrenchment. There are also structural accommodations, one of the most important of which is the composition of the Supreme Court.  Alone among the provinces, Quebec is guaranteed a minimum share of the Court’s membership. One third of the judges (two of six in 1867, three of nine since 1949) must be appointed from the bar or the judiciary of Quebec, which is to say that they must be experienced in the civil law.

On the face of it, this is not enough; it does not preclude the possibility of a common law majority that persistently out-votes its civil law minority and steadily erodes this bijuralism. Its impact has therefore been reinforced by a long-established practice. Peter Hogg describes it as follows: “since 1949 … it has been possible to assemble a quorum of five judges with a majority of civilians” with the result that “(t)his is now the usual composition of the bench when the Court hears a civil law appeal from Quebec.” (Hogg, Constitutional Law of Canada (various editions), Chapter 8.5(a).) Assuming a unified trio of civilian judges – a single defection can be decisive – it is both an acknowledgement and an effective protection of Quebec’s civil law uniqueness.  The recent controversy over the Nadon appointment served once again to highlight the importance of demonstrable and recent civil law experience for those Quebec judges.  As a student, years ago, I was impressed by the elegance of this “five-judge” solution; as a professor, I tried to ensure that my students appreciated it as well.

However, there is another story that we have been telling about the Supreme Court, and that is the story of a steady move toward larger panels.  The Supreme Court Act permits panels of various sizes, but five judge panels continued to dominate even after the enlargement of the Court to nine members in 1949.  In this context, a slight tweak of the rules for striking the panels for civilian appeals was procedurally simple, almost invisible, and reliably consequential.  Ever since the great watershed of the Laskin Court, however, panels have been getting steadily larger.  On the Lamer Court, the default was already seven judges, with the more important issues (such as the growing number of constitutional cases) assigned to larger panels and only the more routine cases (such as appeals by right) going to smaller ones.  Under McLachlin, this trend has continued, such that nine-judge panels are now the most common and five-judge panels have become unusual, used for only one reserved judgement in every thirty.

It is not easy to reconcile this long-term trend toward large panels with a five-judge rule for civil appeals.  This post reports on my own investigation of these two on-the-face-of-it contradictory generalizations, focusing initially on the McLachlin Court.  On my findings, it is the “larger panels” generalization that very much prevails.  The “five-judge” practice of Quebec exceptionalism has all but disappeared.

The first question is how to objectively identify the set of civil law appeals, and the Supreme Court itself has provided the most obvious solution: the judge-written headnotes that lead off every decision.  If those included specific mention of either or both of the Civil Code of Quebec and the Code of Civil Procedure, then I treated it as a civilian appeal.  (A further forty cases listed these statutes among their citations without any headnote notation, but I did not treat citation alone as justifying their inclusion.)  Limiting the inquiry to reserved judgments only, this gave me fifty-five civil law cases, for an average of about three per year.

How many of these were decided by five judge panels?  Only five – one in every eleven, which is to say one every three or four years.  Thirty-two went to seven judge panels, and nineteen to full-court nine judge panels. The average panel size was 7.5, only slightly below the McLachlin Court average of 7.9 for all reserved judgments.  The fact that it is lower at all may suggest a residual tug of the older “five-judge” rule, but if so it is a small tug indeed.

Even more surprising, only a single one of those five judge panels included all three Quebec judges, guaranteeing that a united set of Quebec civilians would prevail over their common law colleagues.  More remarkably yet, this was balanced by a single example at the opposite extreme — a panel with no Quebec judges at all.  A panel small enough that the Quebec judges can make up a majority is of course also small enough that the Quebec judges can be left out altogether.  The five-judge rule would have led us to expect that these five panels would have included a total of fifteen Quebec judges and ten of their common law colleagues; in practice, they included only eight, well below the common law total of seventeen.  Further to punctuate the point, four of the five examples were from the first four years of the McLachlin Court, and the single more recent example was the “no Quebec judges” panel.

Comparing eighteen years of McLachlin with eighteen months of Wagner calls for caution, but there has been no sign of a reversal of the above patterns.  To date, the Wagner Court has dealt with seven civilian appeals, some of which were consequential; five were decided by panels of nine and two by panels of seven.  There was no sign of the five-judge practice, no indication that these appeals are treated differently in this respect from the broad run of reserved decisions.  The five-judge rule is dead; it seems to have breathed its last in 2004.

But all is not lost.  Quebec judges may have been under-represented on the vanishing smaller panels and risk being outvoted on the larger ones, but they do deliver most of the judgments – fifty-one of the McLachlin Court’s fifty-five and five of the Wagner Court’s seven for an overall total of fifty-six out of sixty-two, about ninety per cent. There has long been a significant “homer” tendency on the Supreme Court in assigning the judgment – an appeal coming from your own province roughly doubles your chances – but the tendency is even stronger for Quebec civil appeals.  Compared with the five-judge rule, this may well be a less robust and less compelling institutional recognition of Quebec exceptionalism, but it is where the empirical evidence takes us.  We should remember, however, that when the Supreme Court was first established it was the spectre of common law judges deciding civil code issues that worried Quebec. “It only happens one time in every ten” may not be a completely reassuring response now that civilian judges are now outnumbered on every panel.

Shouting into the Constitutional Void

Section 28 of the Canadian Charter and Québec’s Bill 21

By Kerri A. Froc*

“And if thou gaze long into an abyss, the abyss will also gaze into thee.” (Friedrich Nietzsche, Beyond Good and Evil. Aphorism 146)

For several years now, I have been arguing that section 28 of the Canadian Charter of Rights and Freedoms is more than a symbolic flourish, more than just emphasis for section 15’s sex equality guarantee, and more than an interpretive provision.  In fact, it has its own independent work to do.  This includes blocking attempts by government to use section 33 to preserve gender inequality. 

I did not make up this interpretation of section 28.  Rather, it is part of section 28’s text and history and is uncontroversial amongst those who have studied the matter.  That is why I am not only perplexed, but annoyed, at section 28 seemingly being ignored in the debate over the constitutionality of Bill 21’s requirement that certain government employees (including school teachers, police, Crown prosecutors and judges) do not wear religious symbols at work (section 6).  It is in fact reminiscent of the way that women’s rights were ignored in 1981 constitutional negotiations, which galvanized women to insist upon section 28 in the first place.  Below, I discuss section 28’s interpretation vis a vis section 33, and then how it would be pled in a constitutional challenge to Bill 21.

Section 28 beginning phrase reads: “Notwithstanding anything in this Charter.”  This meant its guarantee of equal rights is not to be derogated by other provisions of the Charter. Provincial and federal bureaucrats attempted after the November 1981 “Kitchen Accord” to subject section 28 to section 33.  They drafted amendments to section 28 and section 33, notionally to “implement” the terms of the Accord (though first ministers never discussed section 28).  The opening words of Section 28 would have been revised to read, “Notwithstanding anything in this Charter except section 33,” and section 33 would have been amended to end with, “or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.”  These proposed additions were scrubbed from the Charter’s final text through the hard work of feminist advocates, women MPs from all parties, and, to put it bluntly, a groundswell of pissed off women from across the country.  This history, however, merely confirms that “notwithstanding anything” means what it plainly says.

In their 1984 book, Canada Notwithstanding, Roy Romanow, John Whyte and Howard Leeson (all members of the November 1981 Saskatchewan constitutional delegation) confirmed that the removal of the application of section 33 from section 28 “in effect…meant that sexual equality in section 15 could not be overridden.”  Justice Carole Julien, in a 2004 Charter case involving pay equity, Syndicat de la fonction publique c. Procureur général du Québec,had occasion to discuss the legal effect of section 28.  She noted that the predominant scholarly opinion was that the override did not apply to section 28 “due to the historical context of its adoption and its objectives” (my translation).  It is unfortunate that this judgment was merely a passing footnote in the recent Supreme Court decision, Centrale des syndicats du Québec v. Quebec (Attorney General).

How would it potentially play out if litigants argued section 28 in relation to the Bill 21 constitutional challenge?  There are potentially two Charter claims that could be advanced by women who are adversely affected by section 6.  The first is that it discriminates against them on the basis of sex, contrary to section 15(1).  The second is that section 6 violates their freedom of religion disproportionately, so that women are unable to exercise this freedom on an equal basis with men.  Sex discrimination is contrary to Charter section 15(1) and 28; a gender-disproportionate violation of religious freedom would be contrary to sections 2(a) and 28.  Section 28 is involved in both claims as section 6 results in unequal rights afforded to men and women.   A section 28 violation cannot be preserved using section 33.

One could also use an alternative legal argument in relation to section 15.  Quebec could argue that a general sex equality violation, in and of itself, does not implicate section 28 (saying that section 28 does not really “add” anything to the section 15 determination).  However, if additional state action is taken to attempt to preserve a section 15 sex equality violation by invoking section 33, section 28 operates to block the effect of that invocation.  Taking action to preserve women’s section 15 rights violation results in unequal rights contrary to section 28.  This is quite applicable to Bill 21, in that section 30 contains a pre-emptive declaration that the Act operates notwithstanding sections 2 and 7-15 of the Charter. 

Regardless of which argument(s) you accept, the validity of section 6 cannot be maintained by the section 33 override because doing would mean section 28 is made subject to the legal effect of section 33.

A question I am sometimes asked is: where is the gender inequality in Bill 21?  Many media sources have indicates that the group most affected are Muslim women wearing the head scarf (hijab), but do not indicate the sources they rely upon for that fact.  I’ve done some of my own data crunching to provide initial support for that point. 

Of the groups mentioned, Muslims are in vastly greater numbers in Québec than both Jews and Sikhs (men from these two other groups have been mentioned as being the others affected by the law).  For the last year in which we have data (2011), there were nearly two and a half times as many Muslims in Quebec as Jews and Sikhs together. Approximately 53%, of Muslim women in Canada wear the hijab.  Quebec’s public service is still massively dominated by white francophones; however, nearly half of its workers are female (amongst school teachers, one of the largest groups affected by Bill 21, that percentage is much higher). It stands to reason given these statistics that most of those affected are Muslim women.  While some judges may not consider these statistics more than a “web of instinct”, this data could be supplemented by access to information requests and litigation disclosure to obtain numbers of affected employees.  Further, one could argue that the state demanding women remove clothing has a more threatening import and communicates a sex-specific devaluation, given the way women’ attire has been regulated and judged by law throughout history.  Thus one could argue that the qualitative impact constitutes a sex-based distinction in itself. 

Even apart from disparate impact, if the purpose of a law is discriminatory or is to privilege certain religious beliefs, then that would be a violation of section 15(1) and section 2(a) respectively.  A good case could be made that Bill 21 targets Muslim women based, for instance, on the Quebec Minister for the Status of Women’s comments.  Concerning the privileging of religious beliefs, it is worth noting that symbols of Quebec’s “religious cultural heritage” (read: Christianity/Catholicism) are specifically exempted from all of Bill 21’s provisions by section 16. 

Of course, there are potentially other elements in relation to a Charter analysis that would have to be successfully argued, such as showing “disadvantage” for section 15(1) and more than atrivial infringement of religious freedom, for section 2(a).  However, I do not regard those as posing much of an impediment. 

Why should we care if civil liberties associations, lawyers, and courts ignore section 28 in the upcoming constitutional battle over Bill 21?  To paraphrase Nietzsche, if we gaze into the Constitution and see only an abyss when it comes to section 28, we should not be surprised if the abyss gazes back in the form of more constitutional provisions courts feel secure in being able to ignore into desuetude.  Simply put, entrenched constitutional text should and does count more than implied bills of rights, unwritten principles, constitutional architecture and the like.  If not section 28 in this case, then when?

* Kerri A. Froc is an Assistant Professor in the Faculty of Law, University of New Brunswick. Follow her on Twitter!

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.

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-de–minimis 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.

Is Québec’s Dress Code Unconstitutional?

There is a serious argument to be made that Québec’s ban on religious symbols infringes the federal division of powers

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, [1953] 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, [1955] 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, [1978] 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, [1985] 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, [2010] 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”. [233]

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, [1986] 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, [2005] 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, [1987] 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.

Bad Taste

Overzealous prosecutors in Québec charge the author and publisher of a novel with child pornography for describing a rape

Québec has a bit of a history when it comes to ludicrous prosecutions of people for their exercise of their freedom of expression. And I’m not talking about Maurice Duplessis’s time here. What I have in mind are the cases of Rémy Couture, a make-up artist who was put on trial for having produced some (admittedly gruesome) pictures and videos, and Matthieu Bonin, charged with hate speech (!) for an online rant apparently suggesting that a shooting at the National Assembly would be a good idea, though these charges were eventually dropped. Both of these took place earlier this decade. And now, they have been joined by the prosecution, on child pornography charges, of Yvan Godbout and Nicolas Doucet, respectively the author and publisher of a horror novel that depicts, on one of its 270 pages, the rape of a child.

Now, I haven’t read the novel (which doesn’t exactly sound like the sort of novel I’d read, anyhow). Since the publishing house is now busy tracking down all existing copies to hand them over to the provincial police, and worrying whether anyone who’s bought one already might be charged, there is no chance that I, or anyone, will. But La Presse quotes both a representative of the publisher and another writer as saying that the scene that forms the basis of the prosecution serves to expose the rapist as a “monster”, and that he is eventually “harshly punished”. It is very difficult to believe that a fair-minded reading of such a scene ― again, one scene in a novel ― would fit under the Criminal Code‘s definition of child pornography as “written material … that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence” or “written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence”.

Moreover, the Criminal Code provides a defence to any person who “has a legitimate purpose related to … art; and … does not pose an undue risk of harm to persons under the age of eighteen years”. The Supreme Court has explained, in R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326, that this requires “an objective connection between the accused’s actions and his or her purpose, and … an objective relationship between his or her purpose and one of the protected activities”, [60] in this case art. Relying on what is said in the La Presse report, there seems to be little question that these requirements will be satisfied here. Besides, the Supreme Court added that “this objective assessment does not involve the court in any assessment of the value of the particular … artistic activity in question”. [61] Whether Mr. Godbout wrote and Mr. Doucet published a book that is great art, or even in good taste, is irrelevant. What matters is that the book in question is art, whether good or bad.

As the Supreme Court rightly noted, the courts ― and, it might have added, prosecutors ― are not well placed to be artistic critics. Their role is not to be the censors who will purify society’s morals and elevate its tastes. Lawyers and judges are not qualified for this job, and should not want to take it up even if they were. The risks of arbitrary enforcement, as well as the certainty of chilling effect on artistic freedom, would not be acceptable in a free society. A lawyer ― and any citizen who values his or her and others’ freedom ― can, however, confidently say that the Québec prosecutors’ tendency to go after unconventional artists is in very bad taste indeed.

H/t Maxime St-Hilaire and Patrick Taillon