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What can the federal government do to challenge Quebec’s charter of values?

Two legal options for action


 

The following is by no means a definitive accounting of the political and legal considerations that might be at play, but, having spoken with a few legal scholars over the last day and a half, the federal government would seem to have at least a couple options should it decide to challenge Quebec’s charter of laws.

First, let us dispatch with the option that exists on paper, but is almost definitely not feasible: disallowance. The Constitution Act of 1867 gives the federal government the power to disallow any Act passed by a provincial legislature, but this power was last invoked in 1943 when the federal government blocked Alberta’s Act to Prohibit the Sale of Lands to any Enemy Aliens and Hutterites for the Duration of the War. The power has since fallen into disuse and invoking it now would likely precipitate a constitutional crisis.

That leaves at least two more reasonable options.

The federal government could refer the matter to the Supreme Court: Section 53(1) of the Supreme Court allows that the “the Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning … the constitutionality or interpretation of any federal or provincial legislation.”

Or the federal government could seek to intervene in one of the challenges that would be likely to be filed in Quebec against the charter should it be passed into law.

A bit of history: In 1977, Pierre Trudeau chose to not challenge Bill 101. John English’s Just Watch Me covers the situation here. In his memoirs, Mr. Trudeau explained as follows:

Yet, however much I philosophically disliked Bill 22—and later the Parti Quebecois’s even more stringent Bill 101—I had no intention of using the constitution to disallow the legislation. The way to change bad laws is to change the government, rather than using Ottawa to coerce a province. The best course was to hope that Quebec citizens would challenge the provincial legislation in the courts—which happened to several discriminatory provisions—and to hope as well that the people would become better informed and their politicians more open-minded.

According to Ian Brodie’s Friends of the Court—see here—it was when such challenges did not emerge that Mr. Trudeau’s government launched the court challenges program.


 

What can the federal government do to challenge Quebec’s charter of values?

  1. I’m of the opinion that the values charter was introduced largely (if not principally) to induce a fight with the federal government. However, it sounds as though the PQ are losing the battle in the court of public opinion since introducing the charter. Let ’em wear it there (no pun intended). No need to get the real courts involved.

    • The charter is popular in Quebec….with the woolley types at least and that’s her base.

      • From what I’ve read, that support is flagging. Regardless, the surefire way to make it more popular is to have the federal government coming down with a litigious hammer. I also have faith that, the longer people study the charter, the more likely they are to come to the conclusion that’s it dumb, divisive politics designed to provoke the ROC and distract Quebecers from real problems.

        • Well Ont is already recruiting their ‘ethnic’ healthcare people, so they’d better hurry up.

          I’d be REALLY peeved if I was Jewish….they’ve been in Quebec since the 1700s I think….and if after all this time…..

  2. The other legal point is that, under any challenge by an employee (e.g., an aggrieved muslim Quebec civil servant) under Quebec’s provincial workplace human rights legislation, these provisions would probably fail. I’m talking about the “reasonable accommodation” test that is at the heart of Canadian provincial workplace human rights jurisprudence. So Quebec would have to elevate this charter to full constitutional status or invoke the federal notwithstanding clause to be able to get away with this, and that’s setting a pretty high bar.

    • They have already indicated that they would use the nothwithstanding clause that is built into Québec Charter of Human Rights and Freedoms,

      52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

      Further, they propose to amend the Québec Charter of Human Rights to give precedence to the equality of men and women.
      No doubt they would use the notwithstanding clause if their charter were challenged by the Supreme Court.

  3. Canadian always like to make a big deal out of nothing because they have nothing else better to do.What the PQ is proposing is affecting a very small group of people because it applies to civil servant… how many are there ? and it applies to women and man wearing head cover. I lived in Quebec for 60 years and very few Jews wear a religious artefact to show their faith.Every one is up in arm about religious freedom, no one has been asked to abandon their faith simply to leave it outside when they come to work. These people were not happy living with their own people so they moved here and they are still not happy living in one of the best country, they can’t even get along with each other look at the mess in middle east , to me it is simple get with the program

    • Oppressive and racist laws are wrong no matter how ‘few’ people are affected or how any other countries (France) do it to. Secularism is the separation of church and state. This is the state interference to please a bigoted popular base.
      This is the 21st century, not the inquisition, get with the program.

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