Comment: Party leaders should have spoken out about Bill 21

A commentary by a professor of law and employment relations at the University of Victoria’s ­Gustavson School of Business.

​Even if one accepts that Quebecers are not “racists,” it cannot be reasonably disputed that the Quebec government has engaged in discriminatory behaviour.

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Bill 21 (formally, “An Act respecting the laicity of the State”), enacted in 2019, specifically prohibits certain provincial government employees from, among other things, wearing “religious symbols” (for example, a crucifix necklace or a turban) while at work.

Section 2(a) of the Canadian Charter of Rights and Freedoms guarantees freedom of religion, and section 15(1) prohibits discrimination based on religion.

Accordingly, any legislation that undermines religious freedom is presumptively unconstitutional.

However, even though a law may discriminate on the basis of religion, it can still stand if it constitutes a “reasonable limit” on religious freedom. This flows from section 1 of the Charter.

However, the Quebec government did not wish to justify Bill 21 in open court. Rather, it chose the nuclear option of invoking the section 33 “notwithstanding clause” when it enacted Bill 21.

Section 33 permits federal and provincial governments to validly enact laws that would otherwise be unconstitutional. A charter override cannot exceed five years, but it can be successively renewed.

If the Quebec government was so confident that its law was not discriminatory, or that even if it were discriminatory, it could nevertheless be justified based on legitimate public policy considerations, why did it use the override?

There is, in my view, only one sensible explanation. The ­Quebec government knew Bill 21 was discriminatory, it knew the law could not be justified on legitimate public policy grounds but since, apparently, the law would be popular with a majority of the electorate, it decided to invoke the notwithstanding clause.

Those directly and adversely affected would just have to suck it up, and either comply with the law or find other work.

Bill 21 is a tawdry piece of legislation, and Messrs. Trudeau, O’Toole and Singh should have unequivocally communicated their absolute abhorrence of it when asked to comment.

I suppose one should not be surprised when our major party leaders put political expediency (i.e., a desire not to offend Quebec voters) before fundamental egalitarian principles, but it is still profoundly disappointing. ​

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