As the April 7 election showed, there are no sure things in Quebec politics. If the Parti Quebecois had won, and if--as originally announced--the National Assembly had enacted Bill 60 (the "Charter of Values") without using the notwithstanding clause, it would have been challenged in the courts, and would likely have been struck down.
With the victory of the Quebec Liberal Party, it is harder to make predictions--especially about the future, as Yogi Berra would say. The Liberals promised a more moderate version of the Charter of Values. Kathleen Weil, the new Quebec Minister of Immigration, Diversity and Inclusion, has been vague about what the legislation will contain.
Scope of any challenge
While the PQ's Bill 60 had 52 articles, three in particular seemed vulnerable to court challenge:
* section 5, which would have prohibited employees of public bodies from wearing headgear, jewellery or clothing which conspicuously indicate a religious affiliation;
* section 6, which would have required employees of public bodies to keep their faces uncovered; and
* section 7, which (subject to some unspecified exceptions) would have required anyone receiving a public service to keep their face uncovered.
Sections 6 and 7 were not the first legislative attempt to require public employees and people receiving public services to uncover their faces. While worded somewhat more obliquely, Bill 94, introduced by Jean Charest's Liberal government in 2010, would have had the same effect. Weil has indicated that there will be some legislation on face coverings, both for those who provide and those who receive public services. The new government might also seek to legislate on the question of conspicuous religious symbols, although a Liberal bill would undoubtedly be less sweeping than the PQ's Bill 60, and will surely not invoke the notwithstanding clause.
If legislation in this area faces a court challenge, as it very likely will, such a challenge will inevitably be brought under both the Canadian Charter of Rights and Freedoms and its Quebec counterpart. It might prove tempting for a number of judges on the Supreme Court to resolve the case under the Quebec Charter.
First stage: Does legislation infringe a Charter right?
Challenges under the Canadian Charter always involve (at least) two stages. First, the party challenging the law must show that it "infringes" one of that person's guaranteed rights found in sections 2 through 23 of the Charter. But it is...