The decision about Quebec’s secularism law should scare all Canadians about human rights protections in this country. It is very likely to be referred to the Supreme Court of Canada for a final ruling, and if they agree with the Quebec Appeals Court that the Quebec law is constitutional it would mean that the concept of human rights in this country will become meaningless.
By Fareed Khan
In a unanimous decision
by Quebec’s highest court on the province’s controversial Bill 21 “secularism”
law released on February 29th the judges sided with the provincial government and
decided that it is within its constitutional rights to implement policies and
laws that violate human rights, and (by extension) promote racism and bigotry
against religious minorities.
The court was ruling on
a challenge to the law launched by a number of civil liberties and Muslim
organizations under Section 2(a) of Canada’s Charter of Rights
and Freedoms. The law was
implemented by Quebec’s CAQ government in 2019, which invoked the Constitution’s
“notwistanding” clause (Section 33) to
override Charter rights and the case has been working its way through the court
since the Charter challenge was launched later the same year.
In issuing the decision the judges
on Quebec’s Court of Appeal seem to be saying that the fundamental human rights
of the communities primarily affected by the law, who are mainly racialized religious
communities, do not matter, and that the bigotry and racism that the law enables
is acceptable. With this decision members
of Quebec’s Muslim, Sikh and Jewish communities who wear clothing that is intrinsic
to the practice of their faith have been told that they are second class citizens
and lesser human beings because of their religious beliefs. While the law affects people of all faiths a 2019 poll revealed that the law was founded on the
basis of anti-Muslim prejudice in Quebec.
The court’s decision is a
very dangerous and fascistic approach to human rights in Quebec because it now
gives free reign to the government to violate the fundamental rights of any
individual or community if it is to their political advantage. Such court rulings are more in line with
authoritarian, far right regimes in other countries than those of an advanced
democracy like Canada.
While Premier Francois
Legault’s government is the primary villain in this situation they have also been
enabled by the federal government which declined to intervene immediately after
the law was instituted in 2019 by referring the law directly to the Supreme
Court. Had the government of Justin
Trudeau taken that action it would have expedited a ruling on the law at Canada’s
highest court, and Quebec’s racialized religious minorities would not have had
to live under the tyranny of a government which finds it acceptable to violate
religious freedoms.
The federal government’s
failure to take action has allowed Quebec to destroy the lives of observant Muslims,
Sikhs and Jews in Quebec who have been unable to fulfill career ambitions in
their home province by working in those fields restricted to them under Bill 21. For more than four and a half years Quebec
has violated the rights of these religious communities, and the Trudeau
government has been complicit in these rights violations by refusing to take
action to defend the rights of Canadians.
Quebecers who wanted to
work in certain public sector jobs – teachers, police officers, crown
attorneys, and others – have had to leave the province to pursue a living
because Justin Trudeau was more concerned about votes in Quebec than he was
about the fundamental rights of Canadians.
He was not alone in this laissez-faire approach to criticizing the
Quebec law as the leaders of other federalist
parties said the issue was within Quebec’s purview, while the nationalist
Bloc Quebecois and the far right People’s Party of Canada said that the federal
government should stay out of Quebec’s business.
Since being elected in
2015 Trudeau and his ministers have talked repeatedly about their support of
the Charter and the rights of Canadians and their opposition to racism. But it appears these statements were all
political theater because the federal government has shown repeatedly that it
cares more about the public relations benefits of making such statements rather
than about defending the human rights of racialized minorities, whether at home
or abroad. A government that truly cared
about defending the human rights of Canadians would have referred the Quebec law
to the Supreme Court in 2019 when it came into force regardless of the political
consequences, or it could have used its powers under the “disallowance”
clause of the Constitution (Section 90).
The Quebec court’s
decision also raises concerns about the integrity of the Charter of Rights and
Freedoms. Since it came into force the “notwithstanding”
clause has been used 26
times by provincial governments (primarily Quebec) to override Charter rights. When it was implemented more than 40 years
ago the Charter was seen as a shield to protect the rights of Canadians from
the whims of politicians. But as we have
seen in Quebec, Saskatchewan, Ontario and other provinces over more than 40
years provincial governments are now more than willing to use this provision to
violate Charter rights for the sake of political expediency regardless of who
suffers as a result. It begs the
question, what is the point of having guaranteed rights under Canada’s Constitution when they
can be ignored by governments and politicians whenever it suits them.
The decision about Quebec’s secularism law should scare all Canadians about human rights protections in this country. It is very likely to be referred to the Supreme Court of Canada for a final ruling, and if they agree with the Quebec Appeals Court that the Quebec law is constitutional it would mean that the concept of human rights in this country will become meaningless. This would make Canada no different than authoritarian states where political leaders violate their citizens’ rights at will. People across Canada should be deeply concerned about what is down the road, and remain vigilant about protecting fundamental rights, which are slowly being chipped away by the actions of some provincial governments. Otherwise we will lose them and human rights and civil liberties in Canada will return to the era before the Charter when the decision about whether Canadians had rights were in the hands of very flawed politicians and the interests they serve.
Fareed Khan is a human rights activist and founder of Canadians United Against Hate.
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