Notwithstanding can’t null treaty obligations
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.