Law on secularism: the FAE in the Supreme Court to demand a framework for the derogation clause

The Autonomous Federation of Education joins the fight to invalidate the Law on State Secularism before the Supreme Court. And this time, the debate will have a reach from One end of the country to the other: the teachers’ union is asking to regulate the use of the derogation clause by governments in order to avoid populist excesses.

The very militant teachers’ union filed an authorization to appeal to the Supreme Court last Friday, our Parliamentary Office learned. She thus joins the English-Montreal school board, which announced its intention in mid-April.

In addition to protecting the right to work of its members, particularly veiled women, the FAE wants to take the opportunity to ask the nine judges to impose guidelines on the use of the derogation clause.

Included from the adoption of the bill prohibiting the wearing of religious symbols by state employees in positions of authority, it protects the Legault government from a challenge in court.

For the president of the FAE, the Supreme Court must broaden the minimum guidelines imposed by the Ford decision in 1988, where it was only required to specify which portion of the Canadian Charter of Rights and Freedoms the government intended to derogate from.

“Since then, particularly over the past 5 years, we have seen more and more human rights across Canada and in the world in general being called into question by a rise in populism. We suddenly begin, in the name of all kinds of principles which are more or less founded, to question fundamental rights which we thought acquired,” explains Mélanie Hubert.

Populism

“Today, [la clause dérogatoire] seems to be used more and more easily, for all kinds of reasons,” adds the president of the FAE.

She gives as an example, of course, the Law on State Secularism, but also other cases that have occurred elsewhere in Canada. (see box below)

One day, anti-abortion lobbies could even push a government to use this approach to limit women’s rights, she illustrates. “Anyone could, at one time or another, find themselves concerned,” argues M^me Hubert.

The FAE’s lawyer, Mr.^e Frédéric Bérard, recalls that at the time of the adoption of the Charter, it was affirmed that there would be a political price to pay for resorting to this legal “nuclear weapon”.

On the contrary, elected officials now seem to be rewarded when they use it against a minority, says the partner at GBM Avocats, recalling the 90 seats won by the Legault government.

Test

However, the FAE is not asking for the abolition of the “notwithstanding” clause.

The union proposes instead to require that governments be obliged to demonstrate the “real and urgent” nature of the problem they aim to resolve. The FAE is thus inspired by one of the criteria of the Oakes test, put forward by the Supreme Court in a previous judgment.

With such an approach, the reform of Law 101 would easily pass, but not the ban on religious symbols, believes M^e Berard.

“The government has not demonstrated the real, urgent and concrete problem that it wanted to resolve,” says Mélanie Hubert.

“If we do not regulate it, we could find ourselves under the yoke of a Parliament which makes all kinds of decisions which flout rights while having no other obligation than to invoke the notwithstanding clause.”

– Mélanie Hubert, president of the FAE

The increasingly used derogation clause

• In Quebec: to protect the reform of Law 101 and the Law on State Secularism.
• In Ontario: with the aim of removing the right to strike from teachers.
• In Saskatchewan: to prevent children under 16 from changing their first name and pronouns at school without their parents’ consent.
• In New Brunswick: it was also considered to limit the rights of young trans people at school.