When he was a professor at McGill University, one of the three Court of Appeal judges responsible for deciding the State Secularism Act compared the use of the derogation clause to “two other exorbitant powers” that the federal government would have no longer dare to rely on it.
• Also read: Ban on religious symbols: The fate of the secularism law was announced on Thursday
The exemption clause is at the heart of debates about banning religious symbols for public servants in leadership positions.
The attorney general defends his pre-emptive use to protect the law from prosecution in court, while opponents denounce the fact that it was used as part of a gag order to deprive minorities of rights.
The appeal court must decide by submitting its judgment next Thursday.
Extraordinary powers
In an academic text* published two years before his appointment in 2002, Judge Yves-Marie Morissette provides an overview of his opinion at the time. He wrote that this exemption had hardly been used since the years of the Lévesque government because of its “burdensome political consequences.”
“Perhaps in the long run this provision will no longer be used, as has already been suggested,” he wrote, referring to another author. In any case, the analogy is tempting with two other exorbitant powers, the power of denial and the power of discovery.”
You should know that the powers of “denial” and “declaration” are two extraordinary mechanisms envisaged at the beginning of Confederation that allow the federal government to intervene in the affairs of the provinces.
The first granted him the right to repeal a provincial law at the time of its passage. The second step gave Ottawa the opportunity to expand its jurisdiction to the detriment of the provinces.
Due to a lack of legitimacy, both have not been used since 1943 and 1961.
Hostility to the clause
For Patrick Taillon, professor of constitutional law at the University of Laval, Judge Morissette's opinion at the time is beyond doubt. “His hostility towards the exemption is very clearly expressed when he is happy that it is no longer being used,” he analyzes.
At the University of Ottawa, constitutional lawyer Benoît Pelletier also points to the judge's “negative opinion,” particularly when he is pleased that it has hardly been used since the Lévesque government.
An opinion that, however, is not shared by the professor at the Faculty of Law at the University of Montreal, Noura Karazivan, who sees it rather as “an objective analysis” of previous practice and “a questioning of the possible obsolescence of the clause”.
However, Patrick Taillon and Benoît Pelletier assure that such comments do not disqualify Judge Morissette, even if they both support the use of the derogation clause.
Appointed by Ottawa
For Patrick Taillon, the problem is more that appeals court judges are all appointed by the federal government and are therefore often more inclined to favor the argument of individual rights protected by the Charter.
“If we compare it to a hockey game, it's as if every time the Montreal Canadiens play the Boston Bruins, the referees are always chosen by the Bruins general manager,” he explains.
The head of media relations at the Court of Appeal yesterday rejected our request for comment. “The requirements of judicial independence, impartiality and restraint imposed on judges prevent us from commenting on the comment to which you bring to our attention,” wrote Caroline St-Pierre.
*(MORISSETTE, Yves-Marie, “The Canadian Judge: Legality, Constitutionality and Legitimacy”, in MOSSMAN, Mary Jane and Ghislain OTIS (dir.), The Rise of the Judges: their manifestations, their contestation, Montreal, Canadian Institute of Administration of Justice, Éditions Thémis, 2000: 39-65.)
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