Legal arguments were not odious Nazi comparisons
Those attacking Bill 21 case lawyer plainly did not hear what he said,
More than a year ago, Coalition Inclusion Québec instituted legal proceedings challenging the constitutionality of Bill 21, one of four cases now being heard before the Superior Court. In the last few days, we have witnessed a flood of Quebec intelligentsia, including a column by Lise Ravary in the Montreal Gazette, attacking our lead attorney, Azim Hussain, accusing him of drawing comparisons between Bill 21 and the Nazi Nuremberg laws and between Quebec and Nazism.
Such comparisons would be odious. They were never made.
Plainly, those making these accusations did not hear what he said. Hussain's arguments were careful, sensitive and incisive. He did not compare Bill 21 to Nazi legislation or Quebec to Nazi Germany.
With that said, let's understand the context, what is really at stake and who is responsible for what happened.
Bill 21 is Quebec's law banning the wearing of religious symbols by large categories of people in the public sector. It is a direct attack on freedom of religion, freedom of expression and the right to equality. Quebec set aside the protections of fundamental rights by using the notwithstanding clause to declare that the law will operate “notwithstanding” the Canadian and Quebec charters of rights. This is the first time the notwithstanding clause has ever been used to pre-empt judicial scrutiny of a law that directly targets fundamental freedoms.
A constitutional challenge to the law, therefore, presents significant hurdles. The notwithstanding clause is part of our constitution, but the fact that rights can be so easily set aside raises troubling questions. Does Canadian constitutional law assign absolute value to the notwithstanding clause or are there scenarios in which
The case raises foundational constitutional issues.
even the notwithstanding clause must cede in the face of human rights violations? If the court accepts the Attorney General of Quebec's logic, there is no judicial constraint on the majority's right to enforce its will against minorities once the notwithstanding clause is used.
No Canadian court has had to face the issues being argued in court right now. The case raises foundational constitutional issues of the same level as those that were before the Supreme Court during the Duplessis era when Jehovah's Witnesses faced systematic discrimination.
This is the context in which Hussain urged the court, when considering Bill 21, to consider whether its reasons will stand up in the face of more egregious violations than Bill 21. An important question. Canada has the shame of its internment of Japanese Canadians. And the world should have learned from the Nuremberg laws of 1935 that the time to stand up to discrimination is when it is still not so extreme. Hussain suggested that when judging today's discriminatory legislation the court should consider if the law it will create will be robust enough to stop more extreme legislation. That is a core lesson of history. Hussain did not, and never would, compare Bill 21 to Nazism or the Holocaust.
So how did this misinformed media frenzy start? The Journal de Montréal began by running a tendentious article reporting on Hussain's reference to Nuremberg. Reporters from the newspaper then approached representatives of the Centre for Israel and Jewish Affairs and the Montreal Holocaust Museum asking what they thought of a lawyer comparing Bill 21 to the Nuremberg laws and Nazism. Predictably, and understandable only if the premise had been true, they harshly rebuked the lawyer for his statements.
However, the premise of the question was not true, and their answer became moral fodder for the ensuing outpouring of wrath by Mathieu Bock-côté and others, all based on comparisons and equivalencies never made.
The result has been an attack on the reputation of an outstanding defender of human rights volunteering his time to defend all our rights. Let's all learn some lessons about the importance of our words.