The Coalition Avenir Québec (CAQ) government of Quebec wants Quebecers and other Canadians to believe it seeks consensus and compromise in its effort to assure that the Quebec state is fully and completely secular.
On Thursday, March 28, it tabled a law that forbids certain categories of public servants, including teachers and police officers, from wearing religious symbols. Among the banned symbols are Christian crosses, Jewish kippahs, Sikh turbans and Muslim hijabs. But the proposed new law does not apply to those currently working in the system; they are grandfathered, as it were.
Quebec Premier François Legault says his government is so respectful and accommodating that it does not want to fire anyone.
Of course, even for those already inside the fence this notional compromise is something of a poisoned chalice. If they change jobs within the public service, they will be treated like new hires and will have to remove all offending religiously-connected garb or symbols.
This proposed new law clearly and unabashedly defies basic human rights as defined and protected by both Quebec’s Charter of Rights and the Canadian Charter of Rights and Freedoms.
Legault’s government has a simple plan to get around Quebec’s charter. It will change it. The government says it will add language to the Quebec charter stating, in effect, that the fundamental rights the charter upholds are limited by the need to respect the secular character (the “laïcité”) of the Quebec state.
It will be easy for the Legault government to modify the province’s own charter; it is a mere piece of legislation, not part of the constitution. The government can do whatever it wants with its Charter, via a simple majority vote in the national assembly.
Such is not the case for the Canadian Charter of Rights and Freedoms, which has been a key and central part of Canada’s basic law, its constitution, since 1982.
All laws, of all governments in Canada, must respect each and every provision of the Canadian Charter of Rights and Freedoms. If they do not, the courts can and will declare them invalid. They have done so on numerous occasions.
However, the Canadian Charter does include an escape clause, the now infamous notwithstanding clause. Quebec’s CAQ government has already invoked that clause to head off any possible court challenges to its new law.
Never imagined the notwithstanding clause would be used like this
In 1981, when the Pierre Trudeau government agreed to a notwithstanding clause in order to get the majority of provinces onside with the idea of a charter, officials assured journalists covering the constitution-making process that this ominous-sounding clause was a reasonable compromise. It would have no negative consequences for Canadians’ basic rights, they said. Except in rare cases, those officials explained, governments — be they municipal, provincial or federal — would never dare to openly pass laws that flagrantly contravene basic human rights.
It has not quite worked out that way.
This past fall, the Doug Ford Conservative government of Ontario invoked the notwithstanding clause to try to force legislation through cutting the size of Toronto’s city council.
An earlier Quebec government invoked the notwithstanding clause after a court ruled there was a free speech issue involved in a Quebec law making French the only permitted language of outdoor commercial signs.
The premier at the time, Liberal Robert Bourassa, argued that he was forced to take this extraordinary measure as a matter of cultural security. The Quebec government had no choice but to protect the French language, he said, which had been under threat for centuries. Many who support human rights could find that explanation to be at least plausible. And the main tangible consequence of Bourassa’s law was to force some businesses to buy new signs — not a huge hardship.
The CAQ government’s current use of the notwithstanding clause does not look nearly so benign. Many believe the CAQ government has decided to bypass fundamental human rights to, in effect, demonize and persecute one identifiable minority group, Muslim women.
While the Legault government legislation notionally targets all religious symbols, virtually all public discussion and debate on the “laïcité” issue has focused on Islamic dress and symbols. Indeed, there is another provision in the new legislation that bans face coverings — meaning, in effect, the niqabs worn by a small minority of Muslim women — not only for public servants, but for anyone seeking to access public services in Quebec.
Opposition from all sides
The opposition Quebec Liberals had a similar ban on face coverings, but they now oppose several aspects of the CAQ’s proposed legislation, notably those that would control the dress of school teachers and other public service workers.
On the other side of the debate, the Parti Québécois’ main critique is that the CAQ’s effort does not go far enough. The Legault government’s proposed law would exempt teachers in private schools, for instance. The PQ says they should be subject to the same rules as public-school teachers.
Left-of-centre Québec Solidaire tries to come down in the middle. It opposes the proposed restrictions on such public employees as teachers, but supports them for prison guards, judges and police officers.
That position could still evolve. Québec Solidaire has a convention this coming weekend where the issue of “laïcité” will be high on the agenda.
All federal political leaders oppose the CAQ initiative, although both Conservative Andrew Scheer and the NDP’s Jagmeet Singh say they recognize the Quebec government’s right to legislate in this area.
Singh addressed the issue in a personal manner. After all, a person who dresses as he does will be a target of the CAQ’s proposed new law. The NDP leader said, poignantly, that the Quebec initiative makes him sad. It reminds him, he told reporters, of his own sense of exclusion growing up.
The CAQ government wants to push this new legislation through fairly quickly, and have it passed by early June, before the national assembly rises for the summer.
That schedule will mean there will be little time for any serious public input or consultation, which perfectly suits the CAQ. Its aim is to get this matter over with, and focus on other, less contentious, aspects of its legislative agenda.
Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble’s politics reporter.
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