Law on Secularism: FAE in Supreme Court seeking framework for defamation clause

The Autonomous Federation of Education joins the Supreme Court in its fight to invalidate the state secularism law. This time, the debate will reach from one end of the country to the other: teachers unions are asking governments to regulate the use of the disparagement clause to avoid populist encroachments.

The highly militant teachers' union last Friday granted permission to appeal to the Supreme Court, Our Parliamentary Office learnt. He thus joins the English-Montreal school board, which announced its intention in mid-April.

In addition to protecting the right to work of its members, particularly veiled women, the FAE wants to use the opportunity to impose guidelines on the use of the nine-judge defamation clause.

It protects Legault's government from a court challenge since it passed a bill banning public servants in positions of authority from wearing religious symbols.

For the head of the FAE, the Supreme Court should expand on the minimum guidelines imposed by the Ford decision in 1988, where the government must specify which part of the Canadian Charter of Rights and Freedoms it wishes to depart from.

“Since then, especially in the last 5 years, we have seen more and more human rights being called into question by the rise of populism in Canada and the world in general. We suddenly start to question the basic rights we thought we had, in the name of all kinds of more or less established principles,” explains Melanie Hubert.

Populism

“Today, [la clause dérogatoire] It seems to be getting used more and more easily, for all kinds of reasons,” says the head of FAE.

He gives one example, of course, of state secularism legislation, but also other cases elsewhere in Canada. (See box below)

One day, she explains, anti-abortion lobbies may push a government to use this approach to limit women's rights. “Anyone, at one time or another, can make themselves anxious,” argues M^me Hubert.

Advocate of FAE Mr.^e Frédéric Berard recalled that at the time the Charter was adopted, it was confirmed that there would be a political price to be paid for resorting to this legal “nuclear weapon”.

Instead, elected officials seem to be rewarded when they use it against minorities, says a partner at GBM Avocats, recalling the 90 seats the Legault government won.

Test

However, the FAE did not ask for the repeal of the “notwithstanding” clause.

The union wants governments to be obliged to demonstrate the “real and urgent” nature of the problem they aim to solve. The FAE is inspired by one of the criteria of the Oakes test laid down by the Supreme Court in an earlier judgment.

With such an approach, the reform of Act 101 will be easily accomplished, but not the ban on religious symbols, M believes^e Berard.

“The government has not demonstrated the real, urgent and concrete problem it wanted to solve,” says Melanie Hubert.

“If we don't regulate it, we may find ourselves under the yoke of a Parliament that makes all kinds of rights-violating decisions, while having no other obligation.

– Melanie Hubert, President of FAE

An increasingly used disparagement rule

• In Quebec: to defend Law 101 and the reform of the law on state secularism.
• In Ontario: with intent to remove the right to strike from teachers.
• In Saskatchewan: To prevent children under 16 from changing their first name and pronouns at school without parental consent.
• New Brunswick: It was also considered to limit the rights of young people with disabilities in school.