Not­with­stand­ing can’t null treaty obli­ga­tions

The Daily Press (Timmins) - - Opinion - Pearl Eliadis Spec ial to Postmed ia News Pearl Eliadis is a Mon­treal-based hu­man rights lawyer and a ­se­nior fel­low of the Raoul ­Wal­len­berg Cen­tre for Hu­man Rights.

Pop­ulism is on ev­ery­one’s lips these days.

In his new book, Stephen Harper warns that un­less we ad­dress the un­der­ly­ing griev­ances that lead to pop­ulism, we risk Trumpian con­se­quences or worse.

In On­tario, Doug Ford railed against a court de­ci­sion that op­posed the will of an elected gov­ern­ment. And in Que­bec, pre­mier-des­ig­nate François Le­gault’s Coali­tion Avenir Québec has swept to vic­tory on a pop­ulist wave of change.

The CA Q has pro­posed a ban on wear­ing signs of re­li­gion that would ap­ply to peo­ple in po­si­tions of au­thor­ity. Le­gault threat­ens to in­voke the not­with­stand­ing clause to avoid the in­evitable (and likely suc­cess­ful) court chal­lenges that will en­sue un­der the Cana­dian Char­ter of Rights and Free­doms. Le­gault claims he is jus­ti­fied be­cause “the ma­jor­ity of Que­be­cers agree.”

Of course, plenty of coun­tries have bowed to ma­jor­ity will and vi­o­lated mi­nor­ity rights, for ex­am­ple in France, where the fir­ing of a Mus­lim teacher for wear­ing a head­scarf was the sub­ject of a 2018 de­ci­sion of the United Na­tions Hu­man Rights Com­mit­tee. The com­mit­tee found France vi­o­lated its obli­ga­tions un­der the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights.

Canada is bound by the same treaty, which pro­hibits dis­crim­i­na­tion on the grounds of re­li­gion.

Canada’s ap­proach to fun­da­men­tal rights has evolved through a healthy di­a­logue be­tween courts and leg­is­la­tures.

As Kent Roach, a Univer­sity of Toronto pro­fes­sor and one of Canada’s lead­ing le­gal minds, once pointed out, an im­por­tant rea­son for the court’s dis­tinct role is “an elected in­sti­tu­tion has an in­cen­tive to min­i­mize and even triv­i­al­ize the rights of the truly un­pop­u­lar.”

That is pretty much what we have with the CA Q pro­posal.

En­ter the case of Ra­nia El- Al­loul. She had ap­peared be­fore the Court of Que­bec in 2015 in an ef­fort to get back her im­pounded car. Judge Eliana Marengo re­fused even to hear her:

The court: “In my opin­ion, the court­room is a sec­u­lar place and a sec­u­lar space. There are no re­li­gious sym­bols … you are not suit­ably dressed.”

El-Al­loul: “Ac­tu­ally, I can­not re­move my scarf … since long years I’m wear­ing my scarf … I came here to ex­plain my case ac­tu­ally.”

The court: “I un­der­stand. But I will not hear you … So you can ask me for a post­pone­ment and con­sult a lawyer.”

El-Al­loul: “How can I de­fend my­self then? I’m on wel­fare by the way. I’m sep­a­rated. I’m liv­ing with three boys. I’m fac­ing money prob­lems.”

Judge Marengo post­poned the case in­def­i­nitely.

At the Court of Ap­peal, the lawyer for the Que­bec at­tor­ney gen­eral ar­gued, ap­par­ently in all se­ri­ous­ness, that it should be OK to give judges the dis­cre­tion to ex­clude whomever they want from Que­bec court­rooms.

In its Oct. 3 de­ci­sion in favour of El-Al­loul, the Court of Ap­peal dis­agreed be­cause the sec­u­lar na­ture of the state does not im­ply the “ex­tinc­tion of re­li­gious be­liefs, but rather re­spect for re­li­gious dif­fer­ences, in­so­far as such be­liefs do not con­flict with or harm over­rid­ing pub­lic in­ter­ests.”

Call­ing Judge Marengo’s de­ci­sion “er­ro­neous” and “un­rea­son­able,” the Court of Ap­peal was un­able to con­ceive of cir­cum­stances where a hi­jab “could pos­si­bly con­flict” with any over­rid­ing pub­lic in­ter­est.

Le­gault needs to think again be­fore in­vok­ing the not­with­stand­ing clause. He may make the Char­ter dis­ap­pear, but he can­not ex­tin­guish Canada’s in­ter­na­tional law obli­ga­tions. Nor should he in­voke pop­ulism to di­min­ish those val­ues of lib­erty, hu­man dig­nity and equal­ity that will re­main part of our coun­try’s fab­ric.

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