Blog 115: Comments on the Hak versus Quebec Attorney-General Ruling

Court of Appeal no : 500-09-028470-193 – 12^th December 2019

Pierre Cloutier ll.m, retired lawyer

2019-12-18

When the Legault government decided to include the so-called “notwithstanding” clause—i.e. section 33 of the Canadian Charter of Rights and Freedoms—in its Draft Bill 21 on State secularism, in order to protect the law from an adverse decision from the Supreme Court of Canada, all those who support the law, including myself, enthusiastically applauded this decision. We thought, reasonably, that the law would thus be protected for at least 5 years, as specified in subsection 3 of section 33:

A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

But we failed to predict the response of Canadian multiculturalist and federalist adversaries and their allies inside the Canadian judicial system, given that judges in superior courts, appeal courts and the Supreme Court of Canada are all appointed by the federal government.

And that response came unexpectedly and incidentally from the Chief Justice of the Quebec Court of Appeal, Nicole Duval Hesler, who yanked a rabbit our of her hat (the “poor” veiled Muslim woman, victim of discrimination to which men are not subjected) in the form of section 28 of the Canadian Charter which reads thus:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

(Emphasis added)

In hockey jargon, we would call this a “big goal that hurts” and if we added a little note of malice, some might even think that it was a nice gift which Justice Duval Hesler offered the federal government just before her retirement, in order to thank it for having named her Chief Justice of the Quebec Court of Appeal.

Why? For the simple reason that the kernel of the legal debate depends on what interpretation federal courts will give to section 28, the highest court being the Supreme Court of Canada which, as René Lévesque once put it, is like the Leaning Tower of Pisa, because it always leans in one direction. This is particularly true here where the full weight of Canadian multiculturalist doctrine and its supposed “moral superiority” is imposed forcefully by Canada on Quebec by the Constitution Act of 1982, which, by the way, is a law of the British Parliament.

It is enough to read the decision by Justice Duval Hesler to realize this. The argument is simple or even simplistic, even if it is wrapped in large quantities of legalistic jargon: the “notwithstanding” clause, section 33, it is argued, does not apply to section 28 because section 33 targets only sections 2 (which includes freedom of religion) and 7 through 15 (legal guarantees, including equality rights in section 15):

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.

(Emphasis added)

The legal match will begin again starting in October of 2020 when the Superior Court will consider the underlying case. But until then, legal experts for the government of Quebec will have their work cut out for them. They must find a response to this stone which the very federalist and multiculturalist judge Nicole Duval Hesler has just thrown into the nationalist duck pond.

The judge Robert Mainville, in his part of the Hak ruling, has indirectly provided some initial arguments against section 28, but the learning curve will be abrupt and steep. Our adversaries lie in wait for us, well entrenched on top of the mountain of the Supreme Court of “Cadenas.”

As this whole affair is also eminently political, there is perhaps some hope in that direction. But as I do not own a crystal ball purchased at Canadian Tire and I do not engage in magical thinking, belief or fiction, I will leave all bets open and leave such speculation to others. But if I were in the Legault government’s place, I would begin to prepare myself seriously for the worst.

Will we have the courage to use this case as a means to question our participation in the Canadian federation, as the Alberta government is indirectly preparing to do with respect to the oil question? As I am an atheist, it is difficult for me to affirm that “God only knows.”