EMSB to bring Bill 21 to Supreme Court
The English Montreal School Board is going to try to have Bill 21, aka la Loi sur la laïcité de l’État, challenged at the Supreme Court. The Supremes may or may not agree to hear it, of course – and politically it would be a scorching hot potato should they declare it unconstitutional.
Update: Simon Jolin-Barrette says Ottawa should mind its own business. Has the minister forgotten that Quebec is still a part of Canada?
Ian 10:07 on 2024-04-11 Permalink
I guess it’s a chance to see if the notwithstanding clause trumps all.
Given what pathetic chickenshits the federal politicians have been in this matter I have my doubts, it’s a long shot for sure.
Kate 13:36 on 2024-04-11 Permalink
My money is on the Supremes declining to hear it.
H. John 19:14 on 2024-04-11 Permalink
@Ian I think the question may be not whether the “notwithstanding clause trumps all” but instead whether the court deals with the issue of preemptive use of the clause.
Some people argue that the clause was intended to be used only after a law had been challenged in court, a decision had been rendered striking down a law, and then legislatures could decide whether or not to override the court.
@Kate I think waiting to read the factum from the appellants (to see on what basis they’re launching the appeal), and, far more importantly, seeing who chooses to join the case as an intervenor would be useful before putting your money on the table.
Ian 20:50 on 2024-04-11 Permalink
Good point, H. John. The pre-emptive use is truly problematic, and Legault seems to be deploying it by default here as in other cases.
Kate 23:13 on 2024-04-11 Permalink
H. John, good warning.
Does the court weigh the possible political impact of its rulings – or even of agreeing to make a ruling – or is it committed to the pure legal logic of the words on the page?
H. John 14:21 on 2024-04-12 Permalink
In cases where appeal is not of right, that is where the court has to decide whether or not to hear a case, the SCC only hears cases that it considers to be of public importance and to have national significance.
“As many as 600 applications for leave to appeal are filed each year and the Supreme Court of Canada grants only approximately 80 of them each year.”
https://www.scc-csc.ca/unrep-nonrep/app-dem/guide-eng.aspx
I think it’s safe to say the court weighs what it says, or won’t say, very carefully.
An example of it choosing not to answer would be one of the four questions the federal government sent to them as part of the Reference re Same-Sex Marriage [2004] 3 SCR 698. The question concerned Quebec’s civil code:
“4. Is the opposite‑sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms?
In the unique circumstances of this reference, the Court should exercise its discretion not to answer Question 4. First, the federal government has stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion on this question. As a result of decisions by lower courts, the common law definition of marriage in five provinces and one territory no longer imports an opposite-sex requirement and the same is true of s. 5 of the Federal Law–Civil Law Harmonization Act, No. 1. The government has clearly accepted these decisions and adopted this position as its own. Second, the parties in the previous litigation, and other same-sex couples, have relied upon the finality of the decisions and have acquired rights which are entitled to protection. Finally, an answer to Question 4 has the potential to undermine the government’s stated goal of achieving uniformity in respect of civil marriage across Canada. While uniformity would be achieved if the answer were “no”, a “yes” answer would, by contrast, throw the law into confusion. The lower courts’ decisions in the matters giving rise to this reference are binding in their respective provinces. They would be cast into doubt by an advisory opinion which expressed a contrary view, even though it could not overturn them. These circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, indicate that the Court should decline to answer Question 4.”
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2196/index.do
Two books dealing with the court’s decision making process are available at the BAnQ:
“The Transformation of the Supreme Court of Canada: an empirical examination” – Songer, Donald
Law, ideology, and collegiality: judicial behaviour in the Supreme Court of Canada” – Songer, Donald
Kate 14:44 on 2024-04-12 Permalink
H. John, as always, I appreciate your legal contributions here. You’ve been educating me for quite some time!