Bill 21: The Ottawa case may have to wait until it goes to the Supreme Court

According to several experts in constitutional law, the Trudeau government also has the political and legal justifications needed to avoid another short-lived duel with Quebec, this time on the question of the law on state secularism.

In an interview with Radio-Canada, professors from various universities across the country confirm that there are good reasons for the federal government to stay away from the next stage of the Law 21 challenge on secularism. Appeal notices will be filed in the coming weeks, and the case is expected to be heard by the Quebec Court of Appeal at the end of 2021 or 2022.

In the opinion of these experts, waiting for Ottawa to go to the Supreme Court of Canada is a logical, or at least defensive, outcome that is almost inevitable.

This legal perspective strengthens the Quebec team in the federal government. According to our sources, many liberals want to prevent the federal role in the next election debate from interfering again in the legal process.

Johanne Poyer, a law professor at McGill University, believes that the moment the federal government chooses to intervene or choose is a political decision rather than a legal one.

This is a strategic question, this is a political question. This is not really a legal question.

I don’t think there are a lot of legal issues that the federal government is arguing [devant la Cour d’appel] It is not enhanced by the panoply of the speakers in this file, Explains Mrs. Poyer, who holds a chair in federalism.

Quebec wants to stay away from Ottawa

The Legalt government has a strong position on this issue: Ottawa should allow Quebec to operate with autonomy.

The request made by the Prime Minister during the last election campaign is still there: the federal government must respect the will expressed by a large number of Quebecars and not contest in Bill 21 or finance the protest., Quebec Premier Franకోois Legalt Press Secretary Evan Sawes said.

The Prime Minister of Canada, Justin Trudeau, has never hidden his opposition to Bill 21, which restricts the wearing of religious symbols by certain employees of the Quebec government, especially teachers. During the 2019 election campaign, Trudeau said it was important for the federal government to keep its doors open to challenge the law.

The federal government must protect the rights of minorities, protect the rights of languages, protect the rights of women and do so nationwide.

Federal government sources say Ottawa has not yet made a final decision on whether to intervene in the Court of Appeals.

However, many quarters agree that the Quebec team in government is primarily campaigning for the federal government to maintain tolerance in this regard.

According to several sources, the position of Montreal MP David Lametti, a lawyer and attorney general, is one of the best issues. Mr Lametti will take seriously the oath he made in 2019 during his cabinet swearing-in. Defend the Constitution.

Federal Justice Minister David Lametti

Photo: Canadian Press / AP / Adrian Wilde

It remains to be seen what kind of recommendation he will make to the government on this matter. A spokesman for Mr Lametti’s cabinet declined to comment on the procedure used to decide whether to intervene before the Quebec Court of Appeal.

Controversial decision

In a judgment in April, Quebec Superior Court Judge Mark-Andre Blanchard upheld large sections of state secularism law, while suspending some articles relating to English-language school boards and elected officials. National Assembly.

By this decision, the court created two school systems in relation to the law on secularism: one for English-speaking schools (where staff may wear religious symbols in the performance of their duties) and the other for French-speaking schools (staff are prohibited from wearing such signs).

Quebec Premier, Franయిois Legalt, with his Minister of Justice Simon Jolin-Barrett

Photo: Radio-Canada / Sylvain Roy Roussell

The Quebec government has announced that it will immediately appeal the ruling, along with other groups opposed to the law.

The judgment of the Superior Court is to create a division in the application of the law on the basis of the language standard., Then condemned Quebec Justice Minister Simon Jolin-Barrett.

Wait or go?

Among those who first challenged Bill 21 was Montreal attorney Julius Gray. He was keen to show Ottawa his colors on this issue, but understood that many factors would affect its approach and the time it chose to intervene.

The decision between the Court of Appeal and the Supreme Court is politically motivated, but I think it is their duty to let us know what they think before the whole process is over., This M. Gray.

The latter adds that political considerations can really influence federal decision making Not a bad thing.

However, Mr Gray is eagerly awaiting the Quebec government to inform Ottawa of his position on the use of the provisions on the autonomy and law of the English school system, which mainly affects Muslim women.

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This government [fédéral] Always call herself a feminist. Section 28 [de la Constitution] It is safe to say that rights apply equally to men and women, and at least in the case of Muslims this law applies more to women., Mr. Gray.

Prevent discussion

Patrick Tylan, a law professor at the University of Laval, believes the Quebec Court of Appeals should limit the debate before intervening in the Ottawa Supreme Court.

The choice to wait is a strategic choice, Says Professor of Constitutional Law. There is no legal or legal argument that says it pays legally to intervene sooner or later. If the government has a point of view, it can be brought up very quickly in the debate or at the end.

Pierre Thibault, who teaches law at the University of Ottawa, put forward a similar argument: the federal government does not need to seek intervention status.

The decision of the Court of Appeal qualifies the decision of the Superior Court, Mr. Thibault, speaks specifically on the part of the decision that will affect the English language school boards in Quebec.

There is always the possibility of interfering in the Supreme Court, He concluded.

English Canada side

Emmett McFarlane, Professor of Political Science at the University Waterloo, Puts forward another reason for Ottawa to wait before participating in a challenge to the law.

According to him, the Trudeau government was too careful or elected to confront the Quebec government on the issue of human rights, and therefore should refrain from interfering. Shy.

Undoubtedly it will be beneficial for the protection of the rights of those affected by this law, which is absolutely unconstitutional, the government [fédéral] Intervene and bring forward the necessary arguments. However, there seem to be political reasons, especially the desire not to create cold with Quebec, which has slowed down., Lance M. McFarlane.

Benjamin Berger, Professor of Law at Osgood Hall Law School, Explains that there is no clear line between legal and political matters – in a similar context.

The decision on whether or not to intervene is therefore fraught with complex factors, including legal theory, the position of the Constitution, political considerations, and intergovernmental relations. There is danger here, Berger said.