Bill 21 allows tyranny of the majority to trump minority rights

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François Legault. Image: LouisRoyQc/Wikimedia Commons

Earlier this week, Quebec's Human Rights Commission released a 327-page report (a 32-page summary can be found here), documenting xenophobic and Islamophobic acts of hate. The commission found that crimes reported and classified as hate crimes have been on the rise across Canada over the past decade, and in Quebec the two most targeted groups in hate crimes reported to the police in 2017 were Muslims and Arabs (and 78 per cent of xenophobic or Islamophobic acts were not even reported to the police). Further, the respondents to the study had experienced an average of three xenophobic or Islamophobic acts, and 35 per cent of the victims said they had changed their lifestyle as a result of encountering acts of hate.

The report's recommendations include taking steps to address systemic discrimination. Myrlande Pierre, vice‑president of the Quebec Human Rights Commission, stated: "Systemic or structural racism exists. Quebec is not exempt from this phenomenon."

While Pierre's comments may seem trite or obvious, sadly they are necessary, given comments made by Quebec Premier François Legault, who has stated that there is no Islamophobia in Quebec (although his office later "clarified" the comment, claiming it was meant to say there isn't an "undercurrent" of Islamophobia in Quebec).

Bill 21: An Act respecting the laicity of the State

But the problem is deeper than comments from the premier. Quebec has passed legislation -- Bill 21, which came into force on June 16, 2019 -- which purports to be based on principles including "the equality of all citizens," and "freedom of conscience and freedom of religion," but which prohibits individuals working for various government bodies and entities funded by the provincial government from wearing religious symbols or a face covering.

Some racialized individuals in Quebec have reported that "they have received a greater level of harassment and intimidation and even attacks since the bill passed," but Legault has doubled down on his views regarding discrimination in Quebec by stating that he doesn't believe the stories of increased harassment, intimidation and attacks. He has also understated the impact of the law by saying that if a Muslim woman really does not want to remove a hijab, the only impact is that "there are four jobs where you can't apply. That's it, that's all."

This law clearly violates individual rights under the Charter of Rights and Freedoms, including the rights to freedom of conscience and religion, freedom of thought, belief, opinion and expression, and the right to be equal before the law and to the equal benefit of the law. Unfortunately, Section 33 of the charter contains a "notwithstanding clause" which provides that Parliament or the legislature of a province can declare that a law will continue to operate even if it breaches certain rights guaranteed by the charter (including the rights mentioned above) -- and the government of Quebec has invoked the notwithstanding clause to protect Bill 21 from challenges that it violates those rights.

The notwithstanding clause

It is unfortunate that Quebec has invoked the notwithstanding clause, because it is a dangerous provision. When the federal government proposed including the charter in our Constitution, the notwithstanding clause was added to the charter as a way to address concerns raised by some provinces that the charter would shift power from elected representatives to appointed courts. However, a significant point of having a constitutionally entrenched Charter of Rights and Freedoms is to protect minority positions from the tyranny of the majority. Including the notwithstanding clause preserved the ability of the majority to take away rights of individuals, such as when Alberta used the clause in 2000 to define marriage as a union between a man and a woman.

It is true that there may be situations where there is a legitimate need to place a limit on a charter right. For example, the right to freedom of expression does not protect the right to hate speech. However, those sorts of limits are provided for in Section 1 of the charter, which states that the rights and freedoms protected by the charter are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." There is a rich body of jurisprudence considering such limits and how Section 1 of the charter and the rights and freedoms set out  should interact to advance the spirit of the charter. The notwithstanding clause is not necessary to protect such reasonable limits. It is my view that the only reason a government would have to invoke the notwithstanding clause is because it wants to take away a charter right or freedom but cannot demonstrate that doing so is a reasonable limit that is justified in a free and democratic society.

Where to now?

Bill 21 has received some media coverage lately, as national party leaders comment on the law in the course of the federal election campaign. Unfortunately, while most party leaders have said they do not agree with the bill, they have also said they would not support a challenge to the law by the federal government.

There is a challenge to the law currently before the courts, which was filed on behalf of the Canadian Civil Liberties Association and the National Council of Canadian Muslims. One of the main arguments raised in the challenge is that the law addresses matters that are solely within the jurisdiction of the federal government under our Constitution, so that provinces do not have the power to pass such a law. A similar approach has been used to challenge attempts by provinces to legislate against same-sex marriage (and rendered the use by Alberta of the notwithstanding clause in 2000 ineffective except on a symbolic level). While the challenge also raises charter arguments, those arguments may be rendered ineffective by the invocation of the notwithstanding clause -- and hopefully other arguments raised in the challenge result in this law being struck down.

Michael Hackl is a lawyer with Iler Campbell LLP where he practices civil litigation, providing advice and representation to charities, non-profit organizations and co-operatives on various matters including employment matters, contract disputes and human rights issues.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Image: LouisRoyQc/Wikimedia Commons

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