The Quebec elections are over and we are about to have a new government. People fed up with Philippe Couillard and wary of the sovereigntist messages of Québec Solidaire and the Parti Québécois took their votes elsewhere, putting François Legault and his party, Coalition Avenir du Québec (CAQ), in office.

Many people are scared, and they have every reason to be. The CAQ ran on an aggressively secularist, anti-immigration, right-wing nationalist (within Canada) platform.

The day after the election, people’s worst fears were confirmed when Legault announced that he would use the Canadian constitution’s Notwithstanding Clause to bar civil servants from wearing religious symbols. To use a popular Quebecois expression, ça commence ben mal (we’re off to a bad start).

For all those in despair, I want to give reasons to hope. This article will look at a couple of the CAQ’s more controversial policies, the legality of them, and the ways we can fight back within the system.

Immigration

One of François Legault’s most controversial statements during the election was that he would expel any immigrants Quebec that failed to pass a French and “Quebec Values” test within three years of their arrival.

Here’s the thing: Quebec cannot legally do that.

The decision on whether or not to expel immigrants is federal jurisdiction. This is not to say that Quebec has no discretion in matters of immigration. One of the ways people can immigrate to Canada is via Quebec’s immigration programs such as Quebec Skilled Worker, Quebec Investor, or Quebec Experience, all of which have limits set by the provincial government on how many people they are willing to accept.

These programs do not guarantee you permanent residence (PR). Once you have a Quebec certificate via one of these programs, you can apply for permanent residence.

The application for PR will be assessed by a federal Citizenship and Immigration (CIC) officer and they get the final say as to whether or not you get permanent residency, not Quebec. It is also the CIC that has sole jurisdiction to issue expulsion orders.

Notwithstanding Clause

As previously stated, François Legault announced on Tuesday that he would be willing to invoke the Notwithstanding Clause to ban government employees from wearing religious symbols. In Quebec, that would apply to everyone from teachers to doctors to public transit workers, cops, and civil servants.

It should be said that if the new government is truly committed to secularism, they need to take down all the crosses in public buildings, a gruelling and expensive task given Quebec’s history with the Catholic Church. It must also be said that their rules should include forbidding anyone in civil service from wearing a cross or crucifix.

Fortunately for people whose faith dictates the wearing of visible symbols, the Notwithstanding Clause is not the magical failsafe Islamaphobes and anti-Semites seem to think it is and it will not allow a government to do what it wants indefinitely.

The Notwithstanding Clause is Section 33 of the Canadian Charter of Rights and Freedoms. It says:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

Section 2 of the Charter deals with freedom of religion, freedom of expression and the press, and freedom of association and peaceful assembly. Sections 7 to 15 deal with such rights as “life, liberty, and security of the person” and protection from arbitrary detention, search and seizures, and other rights in criminal and penal proceedings.

Most importantly in this case, article 15 entrenches the right to equality before and under the law “without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”

The Notwithstanding Clause allows governments to keep a law in place that violates these rights provided they expressly declare that the legislation in question applies notwithstanding the Canadian Charter of Rights and Freedoms.

This declaration by a government would not apply indefinitely. According to paragraph three of the Clause, said declaration “will cease to have effect five years after it comes into force or such earlier date as may be specified in the declaration.”

There is good reason for this entrenched delay.

The Notwithstanding Clause is generally applied by provincial governments in the face of the courts striking down controversial legislation on constitutional grounds. The five-year delay allows said governments to rework the law so it conforms with the Charter in cases where the courts do not give them such a delay.

Quebec, for example, used the Clause to keep Bill 101 in place after the Supreme Court struck it down, using the five years to rewrite the law to fit the Charter. Once the five years is up, the government can choose to re-enact a declaration as per the Clause and the delay restarts.

That said, there is a catch, because guess what else happens every four to five years? Elections.

Using the Notwithstanding Clause is a hugely unpopular move. Canadians have embraced The Canadian Charter of Rights and Freedoms as a way of using the courts to protect them from, for example, xenophobic laws enacted by governments.

A legal challenge to Bill 62, the law enacted by the Liberals barring the wearing of religious symbols by government employees and people using government services, is currently underway and will likely be struck down by the courts. The CAQ can use the Notwithstanding Clause to keep the law in place if they wish, but it might cost them a second term.

The CAQ officially take office once Quebec’s Lieutenant Governor, J. Michel Doyon swears them in and names François Legault as our Premier. Many of us are scared and angry so let’s turn this anger into action and use our power as the people to curb their worst ideas.

* Featured image of François Legault on election night via YouTube

On Tuesday, November 7, 2017, Muslim groups and civil liberty advocates launched the constitutional challenge we all knew was coming. Last week, I and many others predicted that Bill 62 would be headed straight for the courts on grounds that it violates the freedoms guaranteed in Canada’s constitution and Quebec’s Charter of Human Rights.

I’m not going to go over the details of Bill 62 as I did that last week. Instead, let’s talk about the legal challenge.

The plaintiffs in the constitutional challenge say in their court filing that:

“Such blatant and unjustified violations of freedom of religion, as well as of the quality guarantees of the Quebec and Canadian charters, have no place in Quebec or Canada,” and that this cannot be justified in a free and democratic society.

The plaintiffs include the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and Warda Naili (formerly Marie-Michelle Lacoste), a convert to Islam who has chosen to wear the niqab as an expression of her faith.

The CBC spoke to some women who wear the niqab, something the Couillard government failed to do before passing Bill 62. For the most part they claim they have no issue showing their faces for identification and medical purposes, but that the law’s insistence that they show their faces regularly is not only humiliating them and forcing them to act in violation of their faith, but has also exacerbated the harassment they’ve experienced due to their beliefs.

The law, it seems, has sent the message to the most bigoted repulsive members of Quebec society that harassing a woman for how she dresses is perfectly ok. All you have to do is claim religious neutrality and secularism.

The motion filed in Superior Court on behalf of the aforementioned groups comes despite claims by Premier Philippe Couillard that Bill 62 was written to ensure its compliance with the Canadian and Quebec Charters. Quebec Justice Minister Stéphanie Vallée is also on the defensive, claiming the law only applies where uncovering one’s face is needed for communication, identification, or security. She’s said she believes the law will survive a constitutional challenge, though her confidence about this seems forced.

Other leaders in Quebec, including former Montreal Mayor Denis Coderre, newly elected mayor Valérie Plante, and the Quebec Association of municipalities have all come out against the law with one exception.

In a rare show of solidarity, Parti Québecois leader Jean-François Lisée has come out in support of the law, though he wanted even stricter secularist legislation. In spite of this, he too foresaw the constitutional challenge and has stated that a PQ government would use the Notwithstanding Clause to keep it in place should the courts strike it down.

The Notwithstanding Clause Lisée is so fond of is not the perfect fail safe the PQ leader makes it out to be. It is not a way for the Quebec government to flip the judiciary the legal bird should the constitutional challenge not go their way.

Section 33 aka The Notwithstanding Clause of the Canadian Charter of Rights and Freedoms says:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

Sections 7 to 15 of the Canadian Charter of Rights and Freedoms deal specifically with legal rights such as the rights of people charged with criminal conduct, as well as equality rights such as that of equal protection before the law and freedom from discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The clause allows governments to keep legislation that violates these rights in place provided they expressly declare that the law will remain in effect notwithstanding the Canadian Charter of Rights and Freedoms…

…But there is a catch.

The Notwithstanding Clause also contains a rule stating that this declaration and the law it allows can only remain in effect for five years.

The delay was created so legislators could rework the law in question to make it conform to the Charter. The five-year delay is renewable, but even laws the most stubborn politicians take pride in are reworked after being struck down by the courts.

Bill 101 is a perfect example. The Supreme Court of Canada ruled it unconstitutional, so the Quebec Government invoked the Notwithstanding Clause. During that time, the law was tweaked so it conformed to the Canadian Charter of Rights, thus eliminating the need to renew the Notwithstanding Clause and preventing future legal challenges to it.

Lisée’s mention of the Notwithstanding Clause is an indirect admission that Bill 62 is unconstitutional and would not survive a legal challenge. Once the courts strike it down and all government appeals are exhausted, it is certainly within Couillard and any other elected provincial government’s power to use and renew Section 33, but the Canadian people’s embrace of their Charter rights would make it a highly unpopular move.

With the striking down of Bill 62 a certainty, the only question left is how much more hate Quebec governments want to push on us.

There is a racist misogynist money-grubbing cheeto in the White House who has recently and very publicly expressed his sympathy for White Supremacists and Neo Nazis and his contempt for those who fight them. His influence has spread northward to us, emboldening the most morally repulsive people in Canada to come forward and express their desire to see women ground into submissiveness and visible religious and sexual minorities killed.

When these pathetic excuses for human beings face public censure they always cry “free speech”. This article will look at what free speech protections there actually are in Canada and the United States, the laws governing hate speech and propaganda – if any, and the consequences therein.

As the United States is looking like a hotbed of racism, intolerance, and incompetence, let’s start with them.

Free speech protections fall under the First Amendment of the Constitution which says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment protects a wide range of speech no matter how distasteful, untrue, or hateful. Just about any time a city or state passes a law banning hate propaganda of any kind, a First Amendment challenge is brought to the courts.

The Supreme Court of the United States has sided with the hate-mongering petitioners almost every time. As it stands, you could publish or distribute something saying for example, that women or African Americans are stupid and don’t really deserve well-paying jobs and face no criminal legal consequences that would be upheld in a court of law.

In Canada, the situation is very different.

Though Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, and expression, the Canadian Criminal Code has a whole section devoted to censuring hate propaganda. The laws in question prohibit public incitement of hatred and the advocating of genocide against an “identifiable group”. The law carries penalties ranging from a fine to between six months to five years in jail. The law calls an “identifiable group”: “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

The prohibitions on hate speech do have a defense written into them which allows a defendant to beat a charge if they can prove on a balance of probabilities that the statements were true, they in good faith attempted to establish an argument on a religious subject, “the statements were relevant to any subject of public interest” or the person “intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada”.

Our Supreme Court recognizes that laws punishing hate propaganda violate our right to freedom of expression but in R v. Keegstra in 1990 a majority of judges agreed that the violation was justified and therefore constitutional.

James Keegstra was a teacher in Alberta who taught his students that Jews were (among other things) treacherous and child killers. Any students who contradicted his conspiracy theories got their marks docked. He was finally fired in 1982 after four years of complaints. A year later he was charged with promoting hatred. Keegstra was convicted and appealed the conviction.

In their decision, the majority Supreme Court justices said that the law was a proportionally reasonable limit on freedom of expression and that the objective of the law – “to reduce racial, ethnic and religious tension and perhaps even violence in Canada” – was rationally connected to the prohibitions in it.

Keegstra, for his part, remained an unrepentant anti-Semite and holocaust denier until his death in 2014. May he rest in Hell.

Although the United States has no criminal prohibitions against hate speech, there are other ways of censuring hate propagandists. As in Canada, the acts often associated with hate propaganda such as arson, assault, murder, theft, rape, and vehicular homicide are against the law in every state in the union. In addition, victims of hate propaganda can sue for libel, and though lawyers are costly, many in the US will work for the publicity alone.

In Canada, the rules for suing are different as provinces retain jurisdiction over civil law. In Quebec, you can sue for material damages, physical damages – meaning damages to your person, or moral damages – damages to your psyche. The burden of proof is a balance of probabilities and not beyond a reasonable doubt. All you have to do is prove that the hate monger and the propaganda they pushed are at fault for your damages.

Arguments against laws punishing hate propaganda range from the notion that punishing hate speech is being intolerant to the notion that criminalizing hate exacerbates the problem by furthering hate mongers’ narratives of victimhood. While the latter may be true, hate mongers generally adopt a narrative of victimhood regardless of whether there is real persecution or not. With the former, one must look at the paradox of tolerance.

The paradox of tolerance is the notion that part of being tolerant is tolerating intolerance. Historically it’s been proven that tolerance does not necessarily breed tolerance. Tolerance of intolerance all too becomes appeasement of the most evil elements in society, emboldening them further – the lessons of the Second World War and Nazi Germany are the clearest cases of this.

In these troubled times, we need to remember these lessons more than ever, or one day we’ll be the ones run over by a car, or lynched, or gassed.

Until the recent election of the Orange racist misogynist, the public seems to have had mixed feelings about the press. On the one hand, people use it as a means of achieving justice via social pressure and shaming when our legal system fails them. On the other hand you have people unreasonably targeted in the court of public opinion thanks to the press and social media, ruining their lives before the courts can decide their innocence, liability, or guilt. On top of that, news websites are covered with politically or corporate sponsored pieces masquerading as real news that claim to be offering sound advice and information when they’re really just pushing products or agendas no one needs.

It is in this new age of juggling fake vs. real news that we as a society need to take a serious look at what real journalism is, and the laws and ethics of those who practice it.

The simplified definition of journalism is the occupation of a diverse bunch of people who write, edit, and distribute electronic, print, and audio visual material on subjects of public interest. People think of journalists as strictly doing the news, but most news websites have everything from the news, to animal sob stories, to entertainment stuff, to insight on fashion and tech trends to ranty editorial pieces.

That said, though the press is universally recognized as playing an important role in any healthy democracy, there is little in Canadian law explicitly protecting its members. Journalists are widely considered to be the watchdogs of our democracy, calling bullshit and demanding justice before everyone else, but there’s no special law guaranteeing their rights.

Most of the rights of journalists come from the Canadian Charter of Rights and Freedoms. In Quebec, the Charter of Human Rights and Freedoms and the Civil Code, and in the rest of Canada, case law.

In the Canadian Charter of Rights and Freedoms, we have article 2(b) which guarantees freedom thought, belief, opinion and expression, including freedom of the press for everyone.

In the Quebec Charter, we have sections 3 and 9. Section 3 is a lot like 2(b) of the Canadian Charter in that it protects freedom of opinion and expression. Section 9 protects our right to the non-disclosure of our confidential information.

Last but not least in Quebec, we have civil law, written into our Civil Code and Code of Civil Procedure. The rule is that any evidence found to be obtained under circumstances that violate someone’s fundamental rights and freedoms can, to a certain discretionary degree, be rejected by the courts.

Journalists’ fight to protect their sources is one of the more frequent issues that come up before the courts, forcing our justice system to define the rights of the press outside of any definitive legislation.

In 2010 in Globe and Mail v. Canada (Attorney General), the Supreme Court was asked to come up with a way of deciding under what circumstances a journalist should be made to reveal their source.

Anonymous sources are extremely important for societal watchdogs as it allows them to get information from people in circumstances where their job, their reputation, or their lives would be jeopardized by publicly sharing the information themselves. On the other hand, you have the right of the authorities to know where important information is coming from in order to successfully resolve a criminal investigation, and the right of lawyers to have access to information and people in order to successfully defend their clients against criminal charges or lawsuits.

The Supreme Court in Globe and Mail used the Quebec Civil Code and the Canadian and Quebec Charters to come up with the following test as to whether a journalist should be made to reveal their source:

First, one must ask if the evidence resulting from making a journalist answer questions that could reveal their sources would be relevant to the case. If the answer is yes, the courts must consider the following four factors about the anonymous source:

  1. The relationship must originate in a confidence that the source’s identity will not be disclosed
  2. Anonymity must be essential to the relationship in which the communication arises
  3. The relationship must be one that should be sedulously fostered in the public interest
  4. The public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth

In addition to those rules and tests, you have the criminal code and the rules regarding civil liability.

Hate propaganda, public incitement of hatred, and promoting genocide are all criminal offenses in Canada.

If someone causes you damages such as those that could cost you your wealth or livelihood, damages that negatively affected your health, or damages that caused you psychological problems, you are allowed to seek reparations for those damages. People in Canada have successfully sued journalists and media companies for damages because their actions ruined their reputations and/or violated their right to privacy.

Outside the law, the press tends to regulate itself. Lobby groups like the Fédération professionnelle des journalistes du Québec put out codes of ethics for the profession that set out the rules they all should follow. This includes no plagiarizing, making sure to put out accurate information, and making clear distinctions between their personal opinions and the facts they present.

In an age where politicians feel free to accuse the press of undermining democracy, media literacy is more important than ever. We have a responsibility to keep our eyes open for the thinly veiled sponsored pieces and the ranty conjecture masquerading as fact.

Journalists who expose this to us are more important than ever and we need more rules to protect them. Politicians may not like reporters, but without them there’d be no democracy, and no one would know who they are. As Oscar Wilde once said:

“The only thing worse than being talked about, is not being talked about.”

Let’s keep the press free, so they can keep talking.

* Featured image by Pete O’Shea via Flickr Creative Commons

Protests, like potholes, are a year-round occurance in Montreal. The economy is in the toilet, tuition costs are on the rise, and Prime Minister Trudeau has turned his back on the young people whose coattails he rode into office.

Young people voted for Trudeau hoping that he would help stabilize employment in Canada only to be told to get used to temporary, low paying jobs without benefits. Quebeckers voted for Philippe Couillard hoping to do away with the Parti Québecois’ message of aggressive xenophobic secularism and language issues only to find the provincial government raising the language and signage disputes people are sick of. Municipal austerity measures are coming at the expense of the pensions our blue collar workers worked so hard for.

Votes don’t seem to count anymore and the cynicism pushed by bitter columnists is proving true. With the government ignoring the reason they were voted into office, people are forcing the government to listen by taking to the streets.

Everyone from students to cops to healthcare workers to Native leaders are taking to the streets with pickets, hoping to have their voices heard. Like the potholes, the City of Montreal has a pathetic track record of dealing with protests, reverting to persecution rather than reasonable negotiation. To our elected officials, protesters are not frustrated human beings with legitimate concerns but noisemakers and disruptors.

Laws Used Against Protesters

With the cops using their authority to assault people desperate to be heard, it’s time to look at the laws the government uses and overuses to suppress dissenters.

Let’s start with the Canadian Criminal Code.

Protesters are commonly charged with assault, harassment, mischief, unlawful assembly, and obstructing police officers. Since I addressed mischief in my piece on Devil’s Night, let’s look at the rest.

Assault is defined as applying force directly or indirectly to another person without their consent. The penalty is up to five years in prison unless the person is tried on summary conviction, which carries a lesser penalty. If a weapon is used in the assault, the penalty increases to a maximum of ten years, or if tried on summary conviction, a minimum of eighteen months. Since the definition of assault is so vague, it can range from hitting or kicking, to simply pushing and shoving.

Harassment is the act of engaging in conduct that would make a person feel harassed, which includes following them, repeatedly communicating with them, and watching their workplace. As protests often occur in front of government buildings where elected officials work, and repeated communication is the only way they feel they can be heard, it is far too easy for those ignoring them to call it harassment. Harassment is a serious charge, with a maximum penalty of ten years in prison, and its broad definition bears the risk of overuse.

Unlawful Assembly is when three or more people get together for a common purpose and their group causes the surrounding neighborhood to fear a disturbance of the peace. Unfortunately many protests, even peaceful, are noisy. An unlawful assembly charge, which fortunately only runs the risk of a summary conviction, is applied willy nilly by authorities to punish protesters.

Obstructing a police officer is a charge that became popular against protesters this past summer when people stormed the National Energy Board (NEB) hearings to voice their dissent against the proposed Energy East pipeline. To be convicted of this charge, the prosecution has to prove beyond a reasonable doubt that a person resisted, willfully obstructed, or did not assist a public or peace officer in the execution of his or her duties. The penalty is up to two years in prison unless there is a summary conviction.

Protesters are also punished with municipal bylaws.

The municipal bylaw used to punish protesters is bylaw P-6, formally called the “By-law concerning the prevention of breaches of the peace, public order and safety, and the use of public property”.

The bylaw was added to by former Mayor Gerald Tremblay in 2012 following the massive student protests against tuition hikes. Article 2.1 of the bylaw requires assemblies, parades, or gatherings in public places to disclose their itineraries to authorities prior to the event. Article 3.2 of the bylaw makes it illegal for protesters to cover their faces with a scarf or hood without a reasonable motive.

Both of these articles were ruled unconstitutional by Judge Chantal Masse of the Superior Court on June 22, 2016, following a successful challenge by Julien Villeneuve, a CEGEP professor who attended the protests in a panda costume.

Laws that Protect Protesters

We know about the laws used to punish protesters. Now let’s talk briefly about the laws meant to protect them and all of us.

The Canadian Charter of Rights and Freedoms entrenched in our constitution guarantees freedom of thought, opinion, and expression. It guarantees freedom of peaceful assembly, and freedom of association. It also guarantees the right against arbitrary detention. In spite of this, protesters are arrested left and right and their protests, no matter how peaceful, are punished as being unlawful.

Then there’s the Quebec Charter, a quasi-constitutional law entrenched in Quebec legislation. Like the Canadian Charter, it guarantees freedom of assembly and association.

Our criminal laws are also in place to protect, yet they are used to suppress protesters not keep them safe. Police officers who act prematurely by shooting rubber bullets and smashing people with batons rarely see any consequences for their actions, confirming the protesters’ belief that they are there to persecute, not protect.

Protests may be a public nuisance but they are a necessary one. As long as the government refuses to listen to the people who elected them, the protests will continue. As long as people feel voiceless, they will take to the streets to make sure they are heard.

For every time the government betrays the ones who voted for them, hundreds pickets will spring up. The act of listening and communication is the key to most conflict resolution. If politicians want the protesting to stop, they have to start listening.

* Featured image by Cem Ertekin

Courts and judges are professional puzzle solvers. Upon request of private parties or the government, their job is to examine all the pieces of a case comprising of facts, laws, arguments, interpretations, and personal accounts, examine them all carefully, and then put them together to create one cohesive picture. Rarely do all parties in a case like the picture the courts come up with, but all have to either accept it, or try and convince another, more well-regarded puzzle solver – a higher court, to look over the pieces again and try and come up with a better picture.

The case of a bunch of Montreal public transit users versus the Société de Transport de Montréal (STM, Montreal’s public transit service) is a perfect example. Both parties asked a question and presented their arguments, and on September 7, 2016 the Municipal Court of Montreal liked those of the transit users better and used them to create the final picture, thus ruling in their favour.

The STM is now saying they plan to appeal the decision, but their chances of winning on appeal are poor at best.

Here’s what happened.

In 2009, 2010, and 2011, three people, Jean-Philippe Joubert, Nathaniel Bell-Roy, and Monique Khalil, were stopped by STM inspectors – the people who look like and act like cops, except, as one transit user described, when someone is being savagely beaten in the subways. These inspectors demanded to see their transfers, which they had either lost or discarded. Unable to show them the transfer, the inspectors wrote them each tickets for a hundred and fifty dollars, which, with the added sixty-four-dollar fee, came to a total of a two hundred and fourteen dollars.

These people had paid their fares and felt that STM inspectors violated their right to be presumed innocent until proven guilty and the right against being arbitrarily detained as per The Canadian Charter of Rights and Freedoms.

They challenged their tickets and together took the STM to court.

At the time these people were ticketed, the conduct of STM inspectors was legal. They were enforcing articles six and nine of By-law R-105, which is a law setting out the terms and conditions for the possession and use of public transit fares in Montreal. Article six of the bylaw says anyone using the public transit system has to pay a fare, which is fair. It’s article nine that’s problematic because it says that a person has to carry proof that they paid their fare and that STM inspectors can stop and check if a person has done so. Failure to do so can result in a person being charged the same fine -a fine that can range between a hundred and fifty and three hundred dollars plus fees – as someone who skipped out on paying the transit fares.

On the surface, article nine of R-105 looks legit. People who want to take public transit should pay the corresponding fares, and anyone who doesn’t pay a fare and takes the bus or metro should pay a fine. When you take a closer look the way Judge Randall Richmond of Montreal’s Municipal Court did, article nine is unconstitutional.

Article nine violates the presumption of innocence guaranteed by the constitution because it makes the assumption that anyone who cannot provide proof that they paid transit fares during a random stop by inspectors must not have paid. It violates the presumption of innocence because it states that there is only one way to prove that you paid: by showing inspectors your transfer. If you don’t have a transfer, you must be guilty. As Judge Richmond points out in his judgment, witness accounts by those who saw a person pay the fare and circumstantial evidence are not admissible as per article nine. It’s the transfer or nothing, and if you don’t have it, you pay a fine.

The STM claimed that the random stops by inspectors and the fines are meant to prevent commuter fraud, but they never presented any proof at trial that the practice actually deters it. As Richard Beaulieu, a public transit user who was in the courtroom on the final day of the trial points out, inspectors overwhelmingly target blacks and young people. Older people are rarely stopped and ticketed.

The court agreed that the behaviour of STM inspectors violated the constitutional protection against arbitrary detention. The STM argued that the inspectors weren’t arresting people, but case law has said time and time again that once someone is legally stopped and forced to obey a command that deprives them of their liberty, it constitutes arbitrary detention. Being stopped by someone in uniform who won’t let you leave – they way it happened to Jean-Philippe Joubert and his wife in 2009 – constitutes an arrest.

The goal of the arbitrary stops by inspectors and the fines could not be saved by article one of the Canadian Charter that allows some laws to remain in force regardless provided they are justifiable in a free and democratic society. The court put that article of the bylaw through the same constitutional test all other laws go through when their legality is questioned and found the article lacking. The STM is planning to appeal but they’d be better off – like many of their drivers do when faced with someone who can’t pay – letting this one go.

On November 23, 2015 the Arts and Science Federation of Associations (ASFA) of Concordia University reached a settlement with a former executive who accused them of discrimination and harassment based on her ethnicity and gender. The executive is known under the pseudonym “Mei Ling” to undoubtedly discourage harassment from misogynist and racist trolls and supporters of her harassers.

She sought $30 000 in damages after discovering a Facebook conversation about her between two male executives that was left open on a shared computer. The conversation made sexist and racist comments about her, referring to her as a “chink slave,” “bitch” and “whore” and joking about having her impeached if she didn’t have sex with them. Her complaints also include being excluded from executive events, being denied an award before she’d even applied for it and being the only executive not to receive a bonus.

She, with the help of The Centre for Research-Action of Race Relations (CRARR), a civil rights advocacy group, filed a formal complaint with the Quebec Human Rights Commission and the Youth Rights Commission last March. Though a settlement – which includes an undisclosed sum, a public apology and a promise to set up a task force to address the issues arising from the case – was reached with the ASFA, Mei Ling told the press she has every intention of pursuing her harassers individually before the Quebec Human Rights Commission. An investigation is currently underway.

This article is not about the fact that Mei Ling’s harassers are clearly racist misogynist slime who have no place in any position of authority.

It is not about the fact that Concordia’s refusal to give her justice and address the issues of misogyny and racism directly make them an accomplice to the harassment she received, and that the settlement reached is clearly an acknowledgment of their guilt.

This is about the reach of the Quebec Human Rights Commission and the Human Rights Tribunal.

quebec charter of rights newspaper headline

The Quebec Human Rights Commission and the Human Rights Tribunal are the organizations charged with the enforcement of the Quebec Charter of Human Rights and Freedoms. This law was enacted in the 1970s and prohibits, among other things, discrimination based on “race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.”

Though the Quebec Charter isn’t part of the Canadian Constitution and therefore can technically be changed by a simple act by the Quebec legislature, it is considered a fundamental “public order” law with quasi constitutional status. This means that it can’t be trumped by other laws or contracts unless said laws provide even more rights and freedoms than the Quebec Charter and even contains a rule stating that all other laws can’t violate articles 1 to 38 (regarding fundamental rights, freedoms including judicial and political rights and freedom from discrimination) unless the other laws specifically say that they apply in spite of the Charter.

quebec commission logoUnlike the Canadian Charter of Rights and Freedoms which applies only to the government and anyone acting on its behalf, the Quebec Charter applies to all violations of rights and freedoms, including those that occur between private parties. That means that even if your harasser is a private business or some jerk on the street, he could still find himself before the Human Rights Tribunal while the Human Rights Commission demands an explanation and compensation on your behalf.

It works like this: your rights are violated, so you go to the Human Rights Commission and file a complaint. The Commission then conducts an independent investigation. If the Commission decides there are legal grounds and evidence justifying the complaint, it then decides the best course of action which could be the negotiation of a settlement between you and the violator, submitting the dispute to arbitration, or referring the issue to the Human Rights Tribunal.

If the Commission goes to the Tribunal, it can seek “any appropriate measure against the person or to demand, in favour of the victim, any measure it considers appropriate at that time.” (section 80 of the Quebec Charter). This could not only include compensation for material damages but also any grief (known as moral damages) you experienced as a result, and even punitive damages if the violation of your rights was clearly intentional.

Take the case of Richard Zilberg. He’s a Jewish hairstylist who worked for a spa in Montreal. In 2012 he filed a complaint with the Human Rights Commission when his boss Iris Gressy told him he’d no longer be scheduled on Saturdays, his busiest workday, simply because he’s Jewish and shouldn’t work on the Sabbath.

Zilberg, like many Jews, does not keep the Sabbath and rightly felt that his level of observance was his decision alone. The Human Rights Commission agreed and asked that the spa pay him $17 500 in damages: $12 500 for loss of income and $5000 for moral damages. In addition, the Commission recommended that Gressy pay Zilberg an additional $2500 out of her own pocket for her intentional violation of his civil rights. Gressy has since refused to pay and is planning to go to the Tribunal.

Then there’s the case of Lettia McNickle, a black waitress working at Madisons New York Grill & Bar in Montreal who was given less work due to her natural braids. She claims racial discrimination. Though the chain’s head office has since issued an apology, the restaurant, which had initially agreed to mediation, has since withdrawn. With the support of CRARR, McNickle too filed a complaint with the Human Rights Commission and an investigation is scheduled.

To many, the Quebec Charter may seem like excessive policing of individual behaviour, but it and the bodies made to enforce it have their place in a society where suing someone on your own is so expensive. It’s an additional protection from harassment and discrimination and gives recourse to people who would otherwise have none.