Perhaps as early as next week, a Quebec court will be asked to suspend the recent provincial prescription that anyone dispensing or receiving provincial and municipal services do so with one’s face uncovered.
Those challenging the newly adopted Quebec law on religious neutrality on behalf of the minority of Muslim women who wear the face-covering niqab and burka want its most contentious sections to be set aside until their constitutionality has been validated in court.
If the judge agrees, the Quebec face-covering ban could be in limbo for years. Even the wheels of politics grind more quickly than those of Canada’s justice system. To wit, more than a year after the federal law on medically assisted death was initially challenged, the parties involved are still going through some preliminary legal moves.
Justin Trudeau’s government could speed up a definitive determination of the issue by referring the Quebec law to the Supreme Court. But whether a decision by the federal government to take matters in hand would clear the air or simply add a new level of toxicity to the debate is an open question.
It is not uncommon for Ottawa and the provinces to face off in Canada’s top court. In its day, Stephen Harper’s government lost some big federal-provincial battles in the Supreme Court. The Conservative plan to make the Senate an elected house of Parliament died there.
But for the federal government to take a province to court over a law adopted by its legislature in an area of its jurisdiction is a politically aggressive move, especially when the legislature in question is as notoriously jealous of its autonomy as the National Assembly.
For a token of how extraordinary a federal decision to take the lead in challenging what is still commonly known as Quebec’s Bill 62 would be, consider that in the case of the province’s equally controversial language law back in the ’70s and ’80s, Ottawa stuck to a support legal role.
The timeline is also problematic. The current law may not survive the upcoming Quebec election. Both main opposition parties are committed to replacing it with more muscular legislation.
And then federal sources say the initial legal advice Trudeau received from his own government’s lawyers suggested the Quebec law was charter-proof. At the very least, it seems the issue is a matter of debate within the federal justice department.
Notwithstanding some of the prime minister’s comments, there is no default federal position to defend charter rights or to fight on the side of minorities—religious or otherwise—in court.
On the contrary, under both Liberal and Conservative prime ministers, the federal government has regularly been on the opposing (and losing) side of some of the most defining charter challenges.
Think of abortion rights, same-sex marriage and, more recently, the right to medically assisted death.
Under Trudeau’s father, federal government lawyers argued (unsuccessfully) that the charter right to receive one’s schooling in one’s official language did not give minority-language communities the attendant right to run their own schools.
Throughout the debate over Quebec’s face-unveiling law, there has been a glaring disconnect between polls and electoral outcomes.
In Montreal’s hard-fought municipal election, for instance, the face-unveiling prescriptions did not emerge as a wedge issue because neither Valérie Plante nor Denis Coderre would agree to apply them. They both presumably stood on the wrong side of what polls purport to be a winning issue.
Just this week, the Parti Québécois caucus balked at leader Jean-François Lisée’s plan to concoct a more restrictive religious neutrality proposal before the end of the year. The PQ rode that battle horse in the 2014 election campaign and was sent back to the opposition benches.
Meanwhile, Trudeau—whose opposition to all variations of niqab bans is well-documented—leads in the voting intention polls in his home-province.
This is not the first disconnect between polls and voting patterns. For years, the electoral performance of the pro-independence Quebec parties has not matched the strong support for sovereignty reported in the polls. That’s because the polling answer that mattered was the one that showed a solid majority did not want to revisit the issue.
In the same vein, the religious neutrality issue—even as it elicits responses that are solidly supportive of coercive measures—has not, so far, emerged as a defining ballot-box issue for a critical number of voters.
But the principle that the National Assembly does not operate under the supervision of the federal government falls in an entirely different infinitely more consensual category.
Chantal Hébert is a national affairs writer for The Toronto Star. This column was released on Nov. 11.
The Hill Times