Constitutionality of Quebec’s Bill 62 ‘difficult to defend,’ legal expert says

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Quebec Justice Minister Stéphanie Vallée will explain Tuesday how the controversial Bill 62 should be applied as law, in response to discussions at the provincial and federal levels and a charged debate on social media.

The bill prevents anyone from giving or receiving a public service with a covered face. That means a woman wearing a niqab could potentially be prevented from taking public transit.

The bill does not specifically name Muslim women. But Carissima Mathen, vice dean and associate professor of law at the University of Ottawa, says that group would be impacted by the legislation.

“I think that the courts would be reluctant to say that the Quebec government is actually targeting Muslim women, because the law just isn’t clear on that point, but a law can also violate the Charter in its effect, and clearly the law would prevent Muslim women from accessing a myriad of state services based on a sincere religious belief,” Mathen told CTV Power Play’s Don Martin on Monday.

Mathen explained that when the court evaluates whether a law is constitutional or not, it looks at the objective of the law and how the objective is operationalized.

This is where the constitutionality of Bill 62 becomes questionable.

“When the justice minister said it wasn’t enough for a woman to briefly unveil when she gets on the bus — she actually has to be in that state for the duration of the ride or the duration of the time that she’s in a university classroom — you have to start to think, ‘Well, what is the purpose being served by that demand?’ And there I think you get into really difficult issues in terms of Quebec justifying what it has done here,” Mathen said.

Despite the bill’s apparent popularity in Quebec — which Mathen says the provincial government is using to explain how “the law really is meeting a need” — it’s important to consider how this will impact a “very vulnerable group of people.”

“The Charter always exists to protect unpopular minorities from the wishes of democratic majorities. Obviously democratic decisions are really important, but they can’t override constitutional rights,” Mathen said.

Mathen believes it will be difficult to argue that Bill 62 does not infringe on Charter rights.

“I don’t usually like to make predictions, but to me the law is clearly unconstitutional,” Mathen said. 

“Looking at how religious freedom and how the Charter of Rights has evolved over the last three decades, I think this law is going to be really difficult to defend.”

There is one way the province could bypass the question of constitutionality: invoke the “notwithstanding clause” in section 33 of the Charter of Rights and Freedoms.

That clause would allow Quebec’s government to adopt a law that potentially infringes on Sections 2 and 7 of the Charter, which concern, most notably, freedom of expression and the right to equality.

The province can still invoke the Section 33 clause at any point. 

“There have been previous Quebec governments which have simply invoked Section 33 to protect all Quebec laws. I think it’s actually a positive step that Quebec is not doing that,” Mathen said. 

“It’s prepared to defend the law in the normal course, and it would be an extraordinary step to invoke it here when you are dealing with such a tiny minority so hopefully they won’t actually go there.

With regard to the widely debated subject of federal government intervention, there aren’t as many options as people think.

“It’s understandable that people would be looking for leadership from the federal government, this is a law that’s upset a lot of people, it seems discriminatory and so forth, but the federal government doesn’t actually have the power to directly challenge this law, because the federal government doesn’t have rights under the Charter of Rights and Freedom,” Mathen said.

Prime Minister Justin Trudeau, therefore, has two option, Mathen said: intervening if another party challenges the law in a Quebec court by “seek[ing] the leave of the court to make its case;” or, “refer the constitutionality for the court directly to the Supreme Court of Canada,” issuing an “advisory opinion.”

“[The federal government] could do that, but I understand in this case why it would be reluctant to do so.” 

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