Bill 78: four constitutional questions

A caveat: I haven’t taken constitutional politics in over a decade, though I was fortunate enough to have Peter Russell as a professor and had issues with Ted Morton eons before his political career.

Still, Qu├ębec’s Bill 78 raises some interesting constitutional questions for the layperson with a passing interest. Here’s my take, and another caveat: I’m not commenting on right or wrong, good or bad, so don’t bother getting angry at my lack of ranting on behalf of either side.

Question 1: Does Bill 78 violate a Charter right?

On face value, yes – it would seem to violate S.2 Charter rights: expression, peaceful assembly, and association. I’d specifically point to the provision against protests outside colleges and universities and the requirement of police approval for lawful assembly.

Question 2: Are these violations allowed under reasonable limits (S.1)?

Section 1 makes Charter rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Well, Bill 78 is a law, for sure, but there are arguments for and against reasonable limits demonstrably justified, in my opinion. Unfortunately, they are mostly subjective and arguably a case of competing rights between protesters and those attempting to attend or teach. If you’re bored, skip to the end for the reasonable limit I think is most likely to succeed.

Question 3: What criteria could the SCC consider that fall under S.1 but that can be demonstrated by precedent?

Arguing that the QC government is wrong or that the protesters are misbehaving won’t be considered in any Charter challenge. Obviously, the court should consider other precedents and past laws that may, in retrospect, violate Charter rights. I have no idea what cases either side would cite, because I’m not a constitutional lawyer, but the obvious legal analogy is to the War Measures Act. These may or may not favour one side or the another.

Question 4: Does anything in the Constitution Act not in the Charter suggest a defense of Bill 78?

Section 91 might apply if the federal government intervenes in any SCC case. I’m pretty sure it authorizes only the federal government to make laws for “peace, order, and good government,” since that section relates to the division of powers between the federal and provincial governments, and gives the federal government reserve powers.

Students of constitutional politics will remember that in Russell v. The Queen, Board of Commerce, and the Anti-Inflation Reference, the SCC deferred to the federal government in determining national emergencies.

This morning, Rob Silver tweeted about the possibility of governments other than Quebec’s intervening in a potential constitutional challenge to Bill 78, and on the face of it, I’d think the feds and likely a few provincial governments would apply for standing.

Their vested interest is clear. If Bill 78 is found to be unconstitutional, it would not only set a precedent against governments legislating against civic disorder (well, that’s how they think; don’t shoot the messenger) but also impede the right of governments to enact back-to-work legislation…and what is this I read in today’s news? “Tories prep back-to-work law for Canadian Pacific Railway.” You don’t say.

So, in summary, I think Bill 78 prima facie violates Section 2 of the Charter, and I can think of a few arguments the Quebec government might use citing Section 1 plus one compelling argument for the feds under Section 91 of the Constitution Act.

Having said that, the federal government surely won’t legislate given the direct connection with an enumerated provincial power (education). If invited to do so – as with Bourassa and the War Measures Act – I suppose it could, but much has changed since 1970 and even Trudeau considered his own government’s invocation of the act to be an overreach.

The single most compelling reason to believe a constitutional challenge to Bill 78 would fail is that sunset clause – the legislation expires on July 1, 2013. Given the Supreme Court’s tendency to defer to the wisdom of legislatures, in my (humble, non-expert) opinion, the fact that the Quebec government implicitly acknowledges that the measures of Bill 78 must be temporary is probably the only argument the SCC will need to disallow a challenge or allow a S. 1 defense.

I’ve been reminded by @somecanuckchick to review the Quebec Charter of Human Rights and Freedoms as well. I was remiss in not mentioning it, but I was assuming a situation in which a challenge was pursued to the Supreme Court. Really, what I was trying to argue was that today’s back-to-work legislation promise is related, and that means looking at federal laws.

Also, frankly, the Canadian Constitutional Act is supreme to Quebec’s quasi-constitutional Charter; should a challenge to Bill 78 succeed or fail in Quebec, there is ever reason to believe the losing side would appeal to the Supreme Court of Canada.


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