Quebec could face compensation claims for Bill 21 harms

It’s rare for a government to have to pay for a breach of Charter rights, but the door is open to it, and Bill 21 clearly violates those rights.

Might a government owe financial compensation to the individuals it harms via use of the notwithstanding clause in the Canadian Charter of Rights and Freedoms? Specifically, where a law harms fundamental rights and is effective only because the legislature invoked the notwithstanding clause, is it up to individuals alone to absorb those harms? On the contrary, I argue that a court might order a government to pay compensation or damages for the harms it causes.

The question arises most obviously in Quebec. In June, the Legault government in that province adopted Bill 21, An Act respecting the Laicity of the State. It shielded the law from direct challenges under much of the Canadian Charter by use of the notwithstanding clause (section 33). The law’s controversial measures include a ban on religious symbols worn by many categories of public employees. The law prevents visibly religious people from being hired as teachers, principals and government lawyers. Although there is a grandfather clause for employees who held those positions as of March 2019, it won’t cover them if they accept promotion or reassignment.

In my view, it’s open to individuals to seek an award of damages under the Charter’s remedies clause. Section 24(1) states simply that anyone whose Charter rights “have been infringed or denied may apply…to obtain such remedy as the court considers appropriate and just in the circumstances.”

Courts haven’t often ordered the government to pay compensation for breach of someone’s Charter rights, but the Supreme Court of Canada has unquestionably opened the door to doing so. Nearly a decade ago, in Ward, the Supreme Court set out the prevailing approach. In that case, an individual was mistakenly arrested because a police officer believed that he intended to throw a pie at the prime minister. Alan Cameron Ward was strip-searched in violation of his Charter right to freedom from unreasonable search and seizure. He ultimately obtained $5,000. The Court emphasized the potential for Charter remedies to include constitutional damages. In short, Ward tells us that there can be damages for violation of Charter rights. Bill 21 violates Charter rights. Might the harms from Bill 21 be compensable, too?

It’s critical here to understand the textual limits on a government’s use of the notwithstanding clause. Section 33 states: “Parliament or the legislature…may expressly declare…that [an] Act or a provision thereof shall operate notwithstanding…section 2 or sections 7 to 15 of this Charter.” It goes on: “An Act or a provision…in respect of which a declaration made under this section is in effect, shall have such operation as it would have but for the provision of this Charter referred to.” The constitutional language is saying that the law being shielded will continue in force, but it says nothing about what judges may do.

We need to take care not to read restrictions into the text that aren’t there. As observed by Léonid Sirota, section 33 makes no mention of section 24, the remedies clause. That means a government cannot use the notwithstanding clause to shield a law from the remedies clause: it cannot legislate that a law will operate — with potentially harmful effects — notwithstanding the remedies clause. I see no reason for judges to give governments greater immunity from the Charter than its drafters did by developing such a rule themselves. MORE

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PSAC rejects Bloc Québécois proposal on federal government services

People hold up signs during a demonstration in Montreal on April 7 in opposition to the Quebec government’s Bill 21. The legislation proposes to ban some public servants from wearing religious symbols in the workplace. (Graham Hughes/Canadian Press)

The Public Service Alliance of Canada firmly opposes the Bloc Québécois’ proposal to restrict Quebeckers’ ability to work in the federal public service, and their ability to receive important services from the federal government –including the right to vote.

Inspired by Quebec’s widely condemned Bill 21, the Bloc’s proposal would force federal government workers to have their face uncovered in the course of their work, and would also force Quebeckers to have their face uncovered when receiving a federal service for identification or security purposes.

The proposal would also significantly limit their ability to vote.

There are broadly no issues with the delivery or receipt of federal services because of face coverings; nor is there any record of widespread voter fraud in federal elections because of face coverings. In attempting to address ‘problems’ that do not exist, the Bloc Québécois has revealed their recent policy announcement for what it is: an attempt at inflaming anti-immigrant and racist sentiment.

It is also clear that this proposal is targeting Muslim women. Any legislation that requires individuals to remove their religious garment is unconstitutional and discriminatory on the basis of religion, race and gender. Furthermore, this type of legislation would deliver a dangerous precedent in which a government can dictate what a woman can or cannot wear.

The only thing this proposal will accomplish is the increase of anti-immigrant, Islamophobic, racist, and sexist sentiments, as well as incidents, both in the workplace and outside of it.

Montrealers take to the streets to protest Quebec’s proposed religious symbols ban

Bill 21 would ban some public employees from wearing symbols of their faith

Thousands of people gathered in downtown Montreal on Sunday to protest Quebec’s proposed Bill 21. (Graham Hughes/Canadian Press)

Thousands of protesters gathered in downtown Montreal on Sunday afternoon to protest the Quebec government’s Bill 21 — proposed legislation that would ban some public employees from wearing symbols of their faith.

“Quebec is not France, long live the difference!” protesters chanted in French while clapping their hands and cheering.

Protesters gathered next to the Berri-UQAM Metro station before marching down René-Lévesque Boulevard.

People hold up signs as they march during a demonstration in Montreal, Sunday, in opposition to the Quebec government’s newly tabled Bill 21. – Graham Hughes , The Canadian Press

Sunday’s protest is the latest of several events organized since the bill was tabled in late March. Many community and political groups have voiced opposition to the bill, saying it will reduce religious freedoms in the province. MORE

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