Not even the notwithstanding clause can save Quebec's proposed ban on public prayer

Quebec’s “Minister for Secularism” has promised to ban public prayer.

The move is part of an effort, according to the government, to “strengthen secularism,” but it is also yet another example of a discriminatory government clearly targeting religious minorities. Indeed, Premier François Legault has made no attempts to hide this objective, as the CBC reports: “"Seeing people praying in the streets, in public parks, is not something we want in Quebec," Legault said in December, saying he wanted to send a "very clear message to Islamists."”

As with laws like Bill 21, the purported objective of advancing ‘secularism’ is, in this context, obvious nonsense. This is not state neutrality in religion, it is is enforced irreligion, a perversion of secularism, with yet more regulation that has virtually no impact on the practices of members of the dominant religion in the province, only those in the targeted minority. However much certain Quebec elites might complain about the charge, this is not only discrimination, it is also the essence of systemic racism: the disproportionate impact of a law on, predominately, people of colour.

So let’s not be afraid to call this proposal what it is: a racist, discriminatory assault on minority religious freedom. Naturally, most of the media coverage and expert commentary leapt on the obvious unconstitutionality of the proposal under the Charter of Rights and Freedoms, which these days automatically turns to the fact that Quebec might use the increasingly infamous notwithstanding clause to shield the proposed law from judicial review.

But I want to suggest the law is also unconstitutional in a way the notwithstanding clause does not reach: its very purpose is outside of Quebec’s jurisdiction. This is not a law dealing with a genuine public nuisance or even validly regulating public property. It is, instead, a rather naked and colourable effort to criminalize a practice the government does not like. And criminal law is the domain of the federal government, not the provinces.

As Peter Hogg and Wade Wright explain in their leading constitutional textbook, the “colourability” doctrine is raised when “a statute bears the formal trappings of a matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction.” The courts have generally shied away from explicitly applying the colourability doctrine, but it remains a relevant and important aspect of reviewing the validity of laws under the division of powers.

The Supreme Court has held that laws purporting to regulate property - such as Quebec’s infamous “Padlock law” targeting the propagation of communism - are in fact criminal laws and ultra vires the province’s authority (Switzman v Elbling and A.G. of Quebec, [1957]). Similarly, in the 1993 Morgentaler case the Court invalidated a Nova Scotia statute permitting ‘designated’ medical procedures that must be performed in hospitals. On its face, the law regulated health care, a clear area of provincial responsibility. But the Court - although it determined that explicit invocation of the colourability doctrine was unnecessary - concluded that the statute’s true aim was “primarily at suppressing the perceived harm or evil of abortion clinics.”

Quebec’s proposed ban on public prayer mirrors these sorts of laws, laws that on first blush might appear to be valid provincial aims but whose purpose are in fact beyond its authority. If the Quebec National Assembly passes such a law, I hope to see litigation swiftly defeat it on these grounds.