Among the more discouraging aspects of the 2019 federal election was the failure of all major parties to take any meaningful stand against Quebec’s Bill 21. The legislation, which was passed by the National Assembly of Quebec last year, prohibits many public servants from wearing religious attire while they’re on duty. According to the Quebec government, one of the key purposes of the law is to promote the religious neutrality of the state. Civil libertarians and religious equality advocates, however, have widely denounced Bill 21 as an unjustified state intrusion into matters that fall outside of the its proper constitutional role.
To date, four separate legal challenges have been brought against Bill 21. The Quebec Superior Court will hear these cases together in the near future. In anticipation of this litigation, the Quebec government invoked section 33 of the Canadian Charter of Rights and Freedoms, often referred to as the notwithstanding clause. This provision constitutionally insulates laws that would otherwise violate certain rights and freedoms guaranteed by the Charter, subject to a renewal by the enacting legislature every five years.
Even with the invocation of the notwithstanding clause, Bill 21 flies directly in the face of constitutional protections that limit the state’s ability to dictate matters of conscience or religious belief. All political parties ought to be opposed to this legislation and should develop policies based on the very real grounds they would have to challenge Bill 21 if they form government. However, it is especially disappointing that Erin O’Toole, the recently elected leader of the Conservative Party, has not taken advantage of this opportunity to differentiate himself from other federal party leaders by openly opposing Bill 21.
The Tories have numerous reasons to be particularly offended by Bill 21: conservatives have long affirmed the positive and important role that religion plays in the lives of individuals and in the public square, and they often bill themselves as the strongest defenders of religious freedom, even when it seemingly clashes with other shared values.
In this sense, it is unsurprising that O’Toole has vowed to protect the rights of religious minorities both in Canada and abroad if he becomes prime minister. Yet following a meeting with Quebec Premier François Legault on Sept. 14, O’Toole told reporters he backed provincial autonomy and would not interfere on the issue of Bill 21. While O’Toole has sought to frame this as an issue of national unity, he no doubt also fears alienating Bill 21’s numerous supporters in Quebec, a province in which, many observers insist, the Conservatives must make significant inroads if they hope to regain power. Indeed, O’Toole’s decisive leadership victory over frontrunner Peter MacKay is being attributed in large part to the high support he received from Conservative members in La Belle Province.
It would nonetheless be a mistake for O’Toole to assume that the endorsement he received from Quebec Tories will translate into support from Quebec voters more generally. If past electoral performance is any indicator, the Conservatives will still face an uphill battle in Quebec when the next election is called. On this point, O’Toole would do well to remember that the road to Conservative success also goes through racially and religiously diverse ridings, especially those found in the Greater Toronto Area: it is here that a conservative defence of religious freedom can make a strong appeal to both religious and immigrant voters.
Consider the 2019 election, in which former Conservative leader Andrew Scheer’s personal religious views became a hotly debated election issue. Scheer never found a satisfying answer to an endless barrage of questions about whether he supported same-sex marriage. Had he defended himself on the grounds of religious freedom and conscience rights, and then made clear he wanted to protect these rights for all religious minorities, he might have been able to find a powerful message that resonated with voters in the ridings the Conservatives needed — and ultimately failed — to pick up.
By promoting the rights of religious minorities, the Tories can show that religious freedom is truly about protecting the practices of all believers, and not just coded language used by social conservatives and Christians to defend their own beliefs.
To be sure, the Conservatives should denounce Bill 21 first and foremost as a matter of principle. But this doesn’t mean that O’Toole needs to ignore the compelling political reasons that favour taking a stand against this odious law. By promoting the rights of religious minorities, the Tories can show that religious freedom is truly about protecting the practices of all believers, and not just coded language used by social conservatives and Christians to defend their own beliefs. To this end, Garnett Genuis, a rising voice in the Conservative caucus and an early supporter of O’Toole’s leadership bid, has already shown how opposition to Bill 21 can be expanded into a broader platform for combating systemic discrimination in all its forms.
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There are a range of policies that the federal government could adopt toward Bill 21, regardless of who occupies the Prime Minister’s Office. Admittedly, some of these are more advisable than others. The most radical would be to invoke the rarely used disallowance power, under which the federal government is permitted to constitutionally invalidate provincial legislation. Of all the available options, this is by far the least desirable. Although it was once employed regularly, the federal power to disallow provincial legislation has not been invoked for the better part of a century, and its use now would likely ignite a constitutional crisis concerning its legitimacy.
By referring the matter directly to the court of final appeal, the federal government could save these parties the considerable time and cost of litigating the constitutionality of Bill 21.
The next option would be for the federal cabinet to refer Bill 21 directly to the Supreme Court of Canada for an opinion on its constitutionality. The current challenges that have been brought against Bill 21 could take years to make their way through the normal appeals process. By referring the matter directly to the court of final appeal, the federal government could save these parties the considerable time and cost of litigating the constitutionality of Bill 21. Although advisory opinions don’t constitute precedents as weighty as do rulings on cases that were contested by litigants, in practice they’re usually treated as binding.
One of the key questions that will likely be addressed in the Bill 21 litigation concerns the Quebec government’s invocation of the section 33 override, even though the courts may ultimately decide to strike down the legislation on other grounds. Although invoking the notwithstanding clause was once considered taboo, provincial governments have increasingly relied on it in recent years to safeguard controversial legislation against unwanted Charter challenges. While a reference to the Supreme Court on Bill 21 would likely provide much-needed clarity on the constitutional limits of section 33, it could also result in undesirable tension with the Quebec government.
Thankfully, a less contentious alternative remains open to the federal government: the attorney general of Canada may, as of right, intervene as an added party in any litigation involving a constitutional question. Of the various responses to Bill 21 potentially available to O’Toole if he becomes prime minister, this would be the most prudent. Unlike a direct constitutional reference, an intervention by the attorney general would not force the Quebec government’s hand by initiating fresh litigation. Such an intervention could be further tailored to demonstrate the significant ways in which this law misapplies important constitutional principles, but without adopting a hard position on section 33 that risks open confrontation with the provinces.
The insistence that there are no politically viable options available to O’Toole and the Conservatives on Bill 21 rings hollow. To the contrary, Bill 21 has presented the Tories with a rare opportunity to offer leadership on a defining civil liberties issue while making the case to religious minorities that they have a home and champion in the party. The only question is whether Erin O’Toole is prepared to truly lead.