The court’s hands may be tied by the same constitution that is being circumvented, but it’s nevertheless a sad day for minority rights.
Article content
Premier François Legault must be regretting the crass disrespect he showed last week for the Quebec Court for Appeal — those “judges named by the federal government,” as he called them disdainfully, who dared unanimously overturn a ban on asylum seekers accessing subsidized daycare centres.
Legault’s comments in the National Assembly rightfully raised eyebrows — and drew a rebuke from the Quebec Bar — for undermining confidence in the judiciary, not to mention being particularly petty.
Advertisement 2
Article content
Article content
But on Thursday, another three-judge appeal panel handed Legault and his divisive brand of politics a huge victory by validating most of Quebec’s controversial secularism law, and even reversing an earlier exception granted to the English Montreal School Board (an added bonus for the premier). He surely wouldn’t want the court’s credibility to be called into question now.
Bill 21, adopted in 2019, prevents public servants in positions of authority, including teachers, police officers and clerks, from wearing religious symbols on the job. It was the Legault government’s lodestar piece of identity legislation aimed at bulldozing minority rights to placate the majority. It is the very essence of state-sanctioned discrimination.
But in a win for Legault’s steamroller style of politics, the appeals court said that’s all perfectly legal due to the government’s pre-emptive deployment of the notwithstanding clause.
Although the judge of first instance, Quebec Superior Court Justice Marc-André Blanchard, found the law “dehumanizes” Muslim women in particular, the appeals court didn’t provide an opinion on whether fundamental rights are violated by Bill 21 because it would be a moot point. But the three judges ultimately came to the almost same conclusion as Blanchard: that the law is shielded from their scrutiny by the constitutional override.
Advertisement 3
Article content
“One can certainly have many different views on the act and its appropriateness, whether from a political, sociological or moral perspective,” wrote Justices Manon Savard, Yves-Marie Morissettte and Marie-France Bich. “This judgment, however, will evidently consider only the legal aspect of the debate … and it is not ruling on the wisdom of enacting (Bill 21). The Court’s scope of intervention is therefore limited.”
The court’s hands may indeed be tied by the same constitution that is being circumvented. But it’s nevertheless a sad day for minority rights, which are being steadily eroded in Quebec, whether under the guise of secularism, values, or the protection of the French language with Bill 96.
The appeals court has in essence affirmed the legitimacy of majority rule, bolstering Legault’s argument that Bill 21 is reasonable because it’s popular among a segment of the population who are not affected by its provisions.
It’s also a blow to constitutional rights. The very document designed to guarantee freedom of speech, thought, religion and association, as well as equality regardless of gender, race, religion, sexual orientation, ability, ethnic origin or age, also gives legislators a handy pretext to ignore them when convenient or expedient.
Advertisement 4
Article content
It took 42 years, but a cohort of populist premiers have realized they have a nuclear button hidden in Section 33 of the Canadian Charter of Rights and Freedoms to do as they please without the courts getting to second-guess them.
Provinces are increasingly resorting to using the notwithstanding clause for all manner of objectives. Ontario Premier Doug Ford used it to slash the size of Toronto City Council in the middle of a municipal election and to end a strike by education workers. Saskatchewan’s Scott Moe vowed to override a court ruling against his government’s policy on schools seeking parental permission to use different names or pronouns for transgender students.
This will only encourage the provinces to continue to run roughshod over rights, especially with the federal government of Prime Minister Justin Trudeau sitting on the sidelines, tsk-tsking without actually intervening to defend constitutional rights. Maybe Ottawa finally will step in if any of the groups whose arguments were rejected appeal to the Supreme Court of Canada — if it’s not already too late.
Advertisement 5
Article content
For Legault, the upholding of Bill 21 is a triumph for his nationalist agenda while he tries to wrest most powers over immigration from the federal government, amid an unprecedented surge in asylum seekers pushing public services to the “breaking point” and “threatening” the Quebec language and culture.
He was quick to spin it that way as identity politics heat up again.
The judgement “confirms Quebec has the right to make its own decision,” Legault said. “It’s a beautiful victory for the Quebec nation.”
He described secularism as a Quebec value — a continuation of the choice to shake off the domination of the Catholic Church during the Quiet Revolution. He has previously denounced criticism of Bill 21 from elsewhere in the country as evidence fellow Canadians unfairly consider Quebecers racist. He will surely use the ruling legitimizing the law to drive a wedge between Quebec and the rest of Canada, as well as Montreal, home to much of the province’s diversity, and the rest of Quebec.
This feels, depressingly, like a decision that will embolden bullies to rob the bullied from the usual remedies at their disposal.
Advertisement 6
Article content
Noting its own lack of authority to quash Bill 21 due to the notwithstanding clause, the Quebec Court of Appeal reminded people who might be aggrieved by the law or disappointed by their decision that they do have other recourses.
“Absent such a constitutional review, determining the correctness of the legislature’s political and legal choice in invoking Section 33 of the Canadian Charter is therefore left to the citizens, who will make their point of view known through the tools of parliamentary democracy (e.g., elections, lobbying of representatives, petitions submitted to the legislature) and those that the Constitution places at the disposal of any person or group wishing to make their opinion known (such as the exercise of freedom of expression or freedom of peaceful assembly).”
Indeed, the notwithstanding clause must be renewed ever five years — which the Legault government recently announced its intention to do.
We can only hope there will come a day in the not-so-distant future when political acceptance for this “valid” but discriminatory and completely unnecessary law runs out.
Recommended from Editorial
-
Allison Hanes: Even kids can see Bill 21 is wrong, why can’t our leaders?
-
Allison Hanes: Bill 21 decision full of contradictions and doesn’t make sense
Advertisement 7
Article content
Article content