As fight over Quebec's religious symbols law shifts to courts, legal experts debate best way to challenge it

Quebec's religious symbols law was not yet 12 hours old when it became the subject of a Superior Court motion seeking to have it struck down.

On Tuesday, the motion, filed last month by the National Council of Canadian Muslims and the Canadian Civil Liberties Association, will get its first hearing before a judge.

Given widespread concerns about the law's potentially harmful effects on minorities, legal experts predict other court challenges are likely to follow. 

But as opponents of the law turn to the courts, they will have to confront one big obstacle.

The legislation, which bars public school teachers and other authority figures in public service from wearing religious symbols at work, invokes Section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the notwithstanding clause.

That means those sections of the Charter that set out fundamental freedoms (Section 2), as well as legal and equality rights (sections 7 to 15), can't be used to argue the religious symbols law is unconstitutional.

In other words, the usual route for challenging a law's unfairness has been cut off. 

There has emerged, though, a vibrant debate among legal experts about how to get around the notwithstanding clause and challenge the religious symbols law constitutionality anyway. 

In newspaper op-eds, specialist publications and blog posts, law professors and lawyers have been parsing over subsections, wording and case law that stretches back decades.

Their arguments have already inspired one legal challenge, they could inspire others, and in the process, reshape how we see the Constitution. 

Unconstitutional by other means

The motion that will be argued Tuesday is seeking a partial stay of the religious symbols law while the courts take time to consider the deeper claim being put forward by the NCCM and CCLA: that the law is unconstitutional. 

This deeper claim draws on three theories that have been circulating within legal circles since the Coalition Avenir Québec government tabled the legislation, also known as Bill 21, in the spring.

The first relies on the surprising position that Bill 21 amounts to "criminal legislation," which provincial governments don't have the jurisdiction to pass. 

But there is a fair bit of jurisprudence going back decades that suggests this argument has a fighting chance of swaying judges, said Maxime St-Hilaire, a constitutional law professor at the Université de Sherbrooke.

When Bill 21 was tabled, St-Hilaire wrote a blog post pointing out that since the 1950s, the Supreme Court has tended to consider legislation affecting religious freedom to be criminal law, especially when there is a penalty attached to the expression of a religious belief (or non-belief).

That opens the door, he said, for lawyers to argue that Bill 21 is unconstitutional not because it violates fundamental freedoms laid out in Charter, but because it tramples on federal jurisdiction by virtue of the restrictions it places on religious freedom. 

"There is a long line of cases that strongly suggests a province can't do that," St-Hilaire said.

What about unwritten constitutional principles?   

The other ways the motion filed last month seeks to get around the notwithstanding clause is by arguing Bill 21 violates minority rights and the rule of law.

These are two principles are not explicitly mentioned in the Charter, but lawyers will try to argue they represent basic constitutional rules that can't be broken by Canadian lawmakers. 

On their side is the 1998 Supreme Court decision about whether Quebec can secede from the rest of Canada. 

In that ruling — in which the judges ruled Quebec cannot separate from Canada unilaterally  — the court declared there were unwritten principles in the Constitution that are as binding as anything written in it.

"The Supreme Court was careful to say that we should still be guided by the written text of the Constitution, but these principles open up a space for protecting the rule of law and minority rights beyond the Charter," Colleen Sheppard, a constitutional scholar at McGill University, said in a recent email exchange.

When it comes to challenging Bill 21, lawyers will try to prove the law's definition of a "religious symbol" is overly vague. A bracelet worn by a Sikh, for instance, could appear religious to one person and merely decorative to another.  

This raises the likelihood, according to the Quebec Superior Court motion, that the law will be applied differently from one context to the next.

Protection from arbitrary action

And that runs counter to the principle of the rule of law, which the Supreme Court said "provides a shield for individuals from arbitrary state action."

In that same 1998 ruling, the court also said "the protection of minority rights is itself an independent principle underlying our constitutional order."

The motion being heard Tuesday argues that principle is upheld by making sure public institutions are accessible to everyone. 

By banning authority figures from wearing religious symbols at work, Bill 21 alters the inclusive nature of institutions like schools or the police, the motion adds. That's like altering the Constitution itself, which Quebec can't do on its own. 

The appeal of these arguments is that neither depends on the Charter, and so aren't affected by the notwithstanding clause. 

But they are also venturing into relatively unknown territory. "There is not a long list of legislation being struck down by virtue of an unwritten constitutional principle," said Robert Leckey, dean of McGill's law faculty and a prominent opponent of Bill 21.

Other ways forward?

Apart from the arguments contained in the Superior Court motion, legal experts are debating several other strategies for challenging Bill 21's constitutionality as well.

Many of these take direct aim at how the law makes use of the notwithstanding clause. 

One idea involves asking the Supreme Court to review the rules surrounding how the clause is used. Louis-Philippe Lampron, a law professor at the Université Laval, has suggested they don't take into account more recent court decisions on basic rights. 

Another idea is based on a close reading of the notwithstanding clause itself, and notes the words "judicial review" don't appear in Section 33 of the Charter.  

That omission means there is nothing preventing a court from issuing an opinion about the law's constitutionality, argued Leckey and two other noted legal experts in a May article for Policy Options.

They added that even if a court still couldn't outright strike down the law, a negative opinion  could change how it's seen in the eyes of the public.

Section 28 and gender equality

Then there is the option of turning to those sections of the Charter that aren't subject to the notwithstanding clause.

That's the case for Section 28, which states the rights laid out elsewhere in the Charter must be provided equally to men and women.

Several groups in Quebec have repeatedly warned the government that while Bill 21 doesn't single out a particular religion, Muslim women are likely to be more affected than others.  

Not only is the hijab an easily identifiable religious symbol, they say, but teaching is a popular career choice for many Muslim women in Quebec.

If a gender imbalance could be proven, judges might feel compelled to strike down the law because of Section 28.

"Muslim women are being targeted for discrimination based on the intersection of their religion and gender," said Sheppard, who is noted for her work on equality rights.

"Muslim women are women too. They should be protected by 28."

The problem with Section 28, though, is that it's widely thought to be only an interpretative clause; it tells us how we're meant to read other parts of the Charter and is not a stand-alone right.

So if other sections of the Charter are suspended, as is the case with Bill 21, then appealing to Section 28 can have little effect, said St-Hilaire. 

This view sparked a rebuttal from Kerri Froc, a law professor at the University of New Brunswick whose dissertation focused on Section 28.  

"I am not only perplexed, but annoyed, at Section 28 seemingly being ignored in the debate over [Bill 21's] constitutionality," Froc said in an article published recently on the legal blog Double Aspect.

She says both the text of the Charter, and Supreme Court decisions, make it possible to argue Bill 21 violates gender equality rights that can't be swept away by the notwithstanding clause.

Froc concludes her piece by asking: "If not Section 28 in this case, then when?"