Towards two-speed secularism?

We do not know before the end of February Superior Court to Act 21 on Secularism.

The trial, which ended on Tuesday, is commonly referred to as the “provision”.

This is an opportunity for our Dominion’s parliaments to pass legislation that is “independent of the provisions of Section 2 or Sections 7 to 15 of the Federal Charter”.

Bill 21 has two (which is an insult from the Quebec Charter). Opponents want the legislature to limit the use of this “shield” by the courts.

What is the use of charters if we can insult them? And as one lawyer put it: with the risk of a fatal slope that led to the adoption of Nazi laws!

Defenders of Law 21 emphasize that ridicule in the Federal Charter is already limited in time: a maximum of five years. It therefore forces us to return to public debate.

For example, in November 2019, she announced that if Dominic Angled became the leader and took office in 2022, there would be no exemption from Law 21 in 2024.

Counter weight

The “provision” does not, however, mean an automatic violation. This is a way for the legislature to indicate that it does not accept the comment made with the right given by the judges.

During the negotiations that led to the adoption of the 1982 Charter (contrary to Quebec advice), this provision was upheld by the Western Provinces. The notion of parliamentary sovereignty had to be preserved.

Even if they do not establish a pure American system of checks and balances, our rules must guarantee that, as Montesquieu writes, “power stops power”. A dialogue of powers is required.

Other ways

Experts generally agree that an unconditional exception is protected by law.

Also, opponents are trying to invalidate the law by other means.

They argue that: a) Act 21 violates gender equality (additional burden on Muslim women); B) In their view, “independently” means ridicule does not apply.

Another “bypass” worries defenders of Bill 21. Judge Mark-Andre Blanchard, through his questions, expressed interest in the argument from the English Montreal School Board (EMSB) using Article 23. Charter on “Teaching Rights in Minority Languages”.

Section 23 protects the ability of language minorities (Anglophones in Quebec) to recruit teachers through their own organizations. The EMSB reserves the right to appoint teachers who wear religious symbols.

The judge may accept the waiver and apply Rule 21 everywhere in Quebec … except in English-speaking educational institutions.

It will establish a sort of variable geometric secular rule until the exemption expires in 2024. It is the year when the government has to decide whether to standardize the regulations or not.