Diversity illegal in Legault’s ‘one Quebec’
As the charter’s fundamental freedoms take an extended pandemic sabbatical, it is noteworthy that the notwithstanding clause is hale, hearty and in rude health.
Quebec’s Superior Court ruled recently that Bill 21, the secularist law prohibiting public-sector workers from wearing religious symbols, was constitutional. More or less. Actually, both. More in some ways, less in others.
The law’s prohibition, which is aimed mostly at Muslim women but also applies to Jewish and Christian symbols, is a clear violation of religious liberty and equality rights. No one really disputes that. If you can wear a Montreal Canadiens cap but not a yarmulke, that is a prima facie violation of religious liberty and equality rights. Even if you believe the Habs generate religious fervour, it would still be an unlawful preference for one faith over another.
Hence the Quebec government invoked Section 33, the “notwithstanding clause,” in passing the bill. It would not have done so if it did not believe that the law restricted fundamental freedoms.
Section 33 permits a law to operate notwithstanding Section 2 — which delineates fundamental freedoms, including freedom of religion, conscience and expression — as well as sections 7-15, which include legal rights and equality rights.
Judge Marc-andré Blanchard found Quebec’s invocation of the notwithstanding clause to be overbroad, but within its legitimate authority.
In an only-in-canada twist, the judge ruled that part of the law was unconstitutional in regard to Montreal’s English language school board, because minority-language education rights are in Section 23, and not subject to the notwithstanding clause. So a teacher who wears a lapel pin of the Virgin Mary in Montreal’s historically Protestant English school board can become a principal, but a teacher in the historically Catholic French board can be fired for the same.
Also, the notwithstanding clause does not apply to Section 3 of the charter, which guarantees every citizen the right to vote and to stand for election. Therefore, Bill 21 is unconstitutional in regard to members of the National Assembly of Quebec. The very same members of the National Assembly who restrict the religious liberties of all Quebecers themselves cannot have their own religious liberties restricted. Amazing.
Premier François Legault said he was disappointed by the “illogical” ruling. There is a lack of logic, but not from the judge. He found that the law violates religious liberties. That’s not really in dispute. The whole point of the law was to restrict the freedom of Muslim women to appear religiously distinct in public. The distinct society only has room for a limited sort of distinctiveness.
Such restrictions of rights can only be done with the notwithstanding clause. Hence the law is only valid as far as the notwithstanding clause applies. It thus follows, with impeccable legal logic, that where the notwithstanding clause does not apply — minority language education and eligibility for election to the legislature — the bill’s restrictions of rights are unconstitutional.
The court ruling is eminently logical, but the outcome is perverse. The perversity comes not from the court, but from those who passed the law invoking the notwithstanding clause.
“I find it illogical,” said Legault. “It’s as if secularism and values can be applied differently to anglophones than francophones. I don’t understand why the judge said anglophones in English school boards can have different values than the other Quebecers. I think we cannot divide Quebec in two. We need one Quebec, with one set of common values.”
The premier doesn’t think the court should allow anglophones to have different opinions from “one set of common values.” No points for guessing who gets to decide what the common values are. The judge’s ruling makes it clear that the majority is using its power to restrict minority rights, the very thing a charter of rights is meant to prevent.
In our charter, Section 33 allows an exemption from that prevention. Quebec chose to use it, and now the Quebec premier is exasperated that the minorities thus restricted are holding to a set of values other than the “common values” of the Quebec majority.
Religious believers, or at least those who wish to identity themselves sartorially as such, are certainly outside the “common values” of Quebec’s extreme secular fundamentalism. The charter does not offer them protection in this case. The premier suggests something more ominous: that their very presence “divides” the “one Quebec.”
There is, according to the premier, the true Quebec with common values, notwithstanding the presence of religious believers.
Since Bill 21 was passed in June 2019, Canada’s federal party leaders — Justin Trudeau, Andrew Scheer, Erin O’toole and Jagmeet Singh — have been absent at best, complicit at worst, in this gross violation of charter rights. They have been resolute in pursuing electoral advantage in Quebec, notwithstanding their supposed enthusiasm for human rights.
Legault believes that NDP Leader Jagmeet Singh should not be permitted to work in the public sector of Quebec because he wears the turban of his Sikh faith. Singh has won election in two provinces whilst wearing his turban. It would be interesting to ask Legault what he would think if Singh were to move to Quebec.
His right to run for election to the national assembly has been affirmed by the court ruling. Does Legault think that would divide Quebec? Would Singh be a threat to the “common values” of Quebec?
Recall that in 2006, a Liberal prime minister from Montreal running for re-election proposed that he would advance a constitutional amendment to prevent the federal government from using the notwithstanding clause. It had never done so, but prime minister Paul Martin wanted to make his view clear.
Martin has not been heard from on Bill 21. Neither have most of Canada’s leadership class, notwithstanding their purported support for minority rights.
LAW IS VALID AS FAR AS THE NOTWITHSTANDING CLAUSE APPLIES.