December 12th, 2019 was a sad day for visible minorities in Quebec. The Quebec Court of Appeal denied the application to suspend certain sections of the Laicity Act aka Bill 21 until the Superior Court decides on their constitutionality.

A lot of eyes were on the Quebec Court of Appeal in anticipation of this ruling. Some in favor of Bill 21 even tried to undermine the court by questioning the impartiality of the chief justice, Nicole Duval Hesler. Among them were historian and Dawson College professor Frédéric Bastien, who publicly argued ten days before the ruling that Hesler could not be impartial because she has spoken in favor of multiculturalism and religious accommodation.

While most people would consider Hesler an enlightened judge, her critics cried bias, going insofar to file a complaint against her with the Canadian Judicial Council, the body responsible for ensuring the quality of judicial services in Canada.

The authors of the law knew that Bill 21 could not withstand a legal challenge by an objective court. It’s why they wrote the Notwithstanding Clause into the law, and why in anticipation of the Court of Appeal’s decision, they attempted to undermine its chief justice.

Turns out the bigots were wasting their time questioning Hesler’s impartiality, for while Hesler voted to grant the appeal, she was overruled by her fellow judges. In the 2-1 decision, the court decided that the Notwithstanding Clause written into the law made suspension of articles within it impossible until the Superior Court gave their own ruling on its constitutionality.

Now let’s talk about the Court of Appeal decision.

The ruling was the outcome of an appeal of a Superior Court decision rendered on July 18, 2019. The plaintiff in this case is Ichak Nourel Hak, a student scheduled to complete her Bachelor of Education this winter. She hoped to teach high school French in Quebec, but the passing of Bill 21 last June made that impossible.

The law bans many public service employees – including teachers – from wearing religious symbols while working. Hak wears a hijab, and the law as it stands only allows existing employees who wear such symbols to keep their jobs.

New hires and people seeking a promotion would have to remove the signs of their faith in order to work. As it stands, and in spite of the teacher shortage in Quebec, many people have found their job offers rescinded or their applications denied since the enactment of Bill 21.

Hak and three other groups, among them the English Montreal School Board and the Canadian Council of Muslims, are all working to challenge the law in court, but until those challenges are heard and decided, the law remains in effect.

Hak went to the Superior Court seeking an injunction to suspend articles 6 and 8 of the Laicity law until the constitutional challenges were decided.

Article 6 prohibits certain public employees from wearing religious symbols. It also defines religious symbols as all objects, especially clothing, symbols, jewelry, accessories and headgear worn with religious conviction or belief, as well as anything that could be considered religious clothing. Article 8 requires that members or employees of public institutions carry out their duties with their faces uncovered, and that anyone wishing to receive government services must uncover their faces in order to receive them – a clear reference to the Niqab worn by some Muslim women. Though the Laicity Law is supposed to apply to everyone equally, experts agree its effects will be felt mostly by Muslim women in Quebec.

The Superior Court refused to suspend these parts of the law because of the Notwithstanding Clause written into it. The Quebec Court of Appeal maintained that decision.

So what is the Notwithstanding Clause and why can it affect a provincial court decision?

All laws in Canada, be they provincial or federal, are subject to the Constitution, which takes precedence over all other laws. Included in the Constitution is the Canadian Charter of Rights and Freedoms.

Laws that violate the Constitution can be challenged in court, and in the case of a successful challenge, struck down. In order to avoid such challenges, governments can use the Notwithstanding Clause.

The Notwithstanding Clause is section 33 of the Canadian Charter of Rights and Freedoms. It is written into our constitution to allow governments, provincial and federal, to enact laws that violate sections seven to fifteen of the Canadian Charter – sections referring to equality, freedom from discrimination, and the rights of the accused in criminal cases – provided they indicate within the law that it applies notwithstanding the Charter.

The Clause is not, however, the great block to legal challenges Premier François Legault makes it out to be, as it’s only valid for five years. At the end of the five year period, the National Assembly can let it expire thus opening it to new legal challenges, or they can renew it by another act of parliament.

The five-year limit allows for governments to change and in cases where a law has been struck down by the courts, it can buy governments time to keep the law in effect while they rewrite the law so that it conforms to the Charter.

Any legal challenges to the Laicity law will either have to wait for the five years to expire, or find ways around the Notwithstanding Clause to successfully challenge the law. Current challenges include, but are not limited to:

  • That the law violates section 28 of the Canadian Charter guaranteeing equal treatment before the law of males and females given that the law disproportionally affects women. In the past, section 28 has only been used to interpret laws, not challenge them.
  • That the law criminalizes the wearing of religious symbols in certain professions and therefore is unconstitutional on jurisdictional grounds as it was enacted by a provincial government when only the Federal government can enact criminal legislation
  • The law is too vague

The Court of Appeal was not there to render a decision on the Laicity law’s merits. It was there to decide whether or not the law allowed them to suspend certain parts of the law until its merits are decided by another court.

The Court of Appeal recognized that the Laicity Law causes harm to the people it affects, especially women. It recognized that the grounds for the legal challenges – set to be heard by the Superior Court in October 2020 – have merit. It refused to suspend the law until those challenges are heard and decided, stating that the use of the Notwithstanding Clause tied their hands at this stage.

Until the actual challenges to the Laicity law are heard and decided, do not lose hope. Be an open and vocal critic of François Legault and his government and step between those using the law as an excuse to harass and assault innocent people.

Support movements like “Non à la Loi 21” and wear one of their buttons with pride. Show solidarity with Quebec’s religious minorities and laugh openly and loudly at people who defend the law as anything but the legalized bigotry it is.

The fight is not over until we say it is. So keep fighting.

Featured Image of the Quebec Court of Appeals building in Montreal by Jeangagnon via WikiMedia Commons

To say that Harper has a Senate problem is rather like saying that Walter White, from the hugely popular TV show Breaking Bad, has a crystal-meth problem. That is to say, that it understates the severity of the situation to a ridiculous degree. The Federal Conservatives and the Prime Minister, in particular, have been in full crisis mode since the Members of Parliament returned from their extended summer recess last week.

Their problems are caused by two separate but intertwined issues. Both touch on the legitimacy of the unelected, unaccountable and scandal-prone institution that is occasionally referred to as the upper-house of sober second thought.

The first has to do with the growing uproar of fraudulent expense claims made by three Harper appointees (read cronies) and one Chretien era Liberal (Mac Harb) who has since retired. The second problem is on account of a half-assed bill ( C-7) that is designed to reform the Senate by introducing two measures that might make the body slightly less undemocratic by allowing willing provinces to elect their Senators and limit their term in office to nine years. The latter may be overshadowed by the sexier Duffy-gate (apologies for the lazy Watergate reference) but is arguably more important, constitutionally speaking.

wallin-duffy

Duffy, Wallin and, to a lesser extent, Brazeau have all pushed back against Harper’s attempts to throw them under the bus, mainly from the Senate floor or in the media. First the “Honourable” Mike Duffy lashed out at his former political masters with a series of shocking revelations about how personally involved Harper was in the damage control strategy that appears to have been cooked up by his then Chief of Staff Nigel Wright.

The Prime Minister vehemently denies this charge, suggesting instead that he had no knowledge of the $90 000 bailout for Duffy arranged by his former lawyer Benjamin Perrin and Mr. Wright. Harper also claims that he never read Mr. Duffy the riot act nor did he threaten to expel him from the caucus if he didn’t resign first. Duffman only left the party because Harper’s former staffer Ray Novak and former Senate majority leader Ms. LeBreton leaned on him and let him know he’d get the boot if he didn’t fall on his own sword publicly.

Senator Pam Wallin also refuses to go out like a punk. She alleges that former Tory colleagues, senators LeBreton and Carolyn Stewart Olsen, acting on behalf of the PM, orchestrated a campaign of leaks and the Senate Internal Economy Committee report (the body tasked with investigating Wallin’s expenses) was designed to tarnish her good name and intimidate her into complying with Harper’s wishes. She has since resigned from Conservative caucus but denies any fraud, claiming that she made an honest mistake in filing her expense claims. Wallin’s only crime: in her words, she was simply being an “activist senator” (note: the term activist mean something completely different in the over-privileged world of the Senate).

In the meantime, Harper’s feeble attempt at Senate reform appears to be going down the tubes. Last year, the Charest government submitted a reference to the Quebec Court of Appeals (the highest court in the province) in response to the Federal government’s attempts to change the Senate through the back door (a.k.a Bill C-7). Last Thursday, the Quebec court ruled Harper’s move unconstitutional.

The gist of the Court’s legal smack down is that the Feds are obliged to consult the provinces on a matter as important this and cannot make a substantive change to the constitution by means of a simple federal statute. Finally, any such process would be subject to the dreaded 7/50 formula found in section 38 (1) (B) which requires seven provinces representing at least 50 % of the Federation to ratify any proposed changes.

As the court said in its opinion, “they (the Feds) cannot circumvent it on the pretext that the constitutional amending process is complex or demanding.” This may not be the kibosh on Harpers plans, but when the Supreme Court of Canada hears the matter in Mid-November, the Quebec decision will definitely carry a lot of weight, and make it even harder for the justices to find in favour of the Federal government’s position.

Reading about President Obama’s war-mongering campaign with regards to his proposed military strikes against the Syrian government, I was shocked to see his administration make the disturbing claim that POTUS (President of the United States) reserves the right to push the button with or without a formal declaration of War by Congress.

I’m shocked, because we are not dealing with some fake cowboy dumbass that somehow fell off the turnip truck and landed in the Oval Office. Rather, Obama is, according to the biography of his own life, as well as independent accounts, a former constitutional law prof at the University of Chicago or lecturer, to be more precise (having worked as a lecturer myself, I can tell you there is a world of difference between the two in the academic world). At any rate, one would hope that as a graduate of Harvard law, he would be familiar with the US Constitution’s article 1, section 8 which clearly states that “Congress shall have the power…to declare war.”

So either Obama was the world’s worst constitutional lawyer, or he has conveniently ignored the fundamentals of US law since becoming the most powerful man in the world. I for one, am betting on the second being the case.

It’s not the first time the constitutional lawyer in him has been suppressed for the sake of politics. In fact, Obama has made a maddening habit of doing just that, when it suits his administration’s agenda, whether on the issue of fighting terrorism, violating the privacy of US citizens and foreigners, or harassing journalists.

When it comes to fighting terror, through the use of state sanctioned killing of innocents through the CIA’s devastating drone program, Obama really takes the cake. He’s actually upped the ante from the Bush years by approving a massive surge in drone attacks, mostly in Pakistan and Afghanistan. But also in Yemen, where the president made a dubious defense of the summary execution by means of hell fire missile, without trial, or any form of due process, of an American teenager who had the misfortune of being the son of known Al-Qaeda terrorist, Anwar al-Awlaki.

Consider that the Department of Justice, on the orders of the president, secretly subpoenaed the e-mails and personal phone records of Fox journalist James Rosen for his alleged involvement in leaking classified information to the public. The White House completely disregarded article 1 of the Constitution guaranteeing freedom of the press in its blatant attempts to intimidate the press with absurd charges of criminal conspiracy against members of the fourth estate.

All part and parcel of the new imperial presidency that long ago begun undermining the separation of powers intended to prevent the concentration of too much powers in the hands of one person or institution, but continues its alarming growth under President Obama who used to try and reassure the public by pointing to his background as an expert on the US Constitution.

Does anyone remember the concept of “open federalism?” That was the anti-centralist concept of Canada espoused by the Reform party back in the early 90’s that said the role of the feds should be limited to those areas that the provincial government either can’t or won’t do themselves. They also argued quite forcefully that any major policy decisions should be done in consultation with the provinces rather than being imposed on them by a dictatorial government in Ottawa.

Ironically enough these were once the cherished principles that our two-faced Prime Minister Harper once swore to adhere to until his dying day, if ever he became Prime Minister. Now, like so many other noble words once spoken by Steve Harper (i.e. denouncing patronage appointments of Senators) & his gang of neo-cons, they have been quickly disregarded in favour of the new dominant political ideology of this government: Ottawa knows best! As a wise man once said (Groucho Marx, often misattributed to Woody Allen) “ these are my principles. If you don’t like them, I’ve got others.”

I was reminded of open federalism the other day, when a Superior Court judge in Quebec found that the long gun registry was a shared overlapping jurisdiction between the two levels of government (criminal law is federal, but the registration of firearms is a matter for the provinces) and could not be destroyed without the consent of the provinces.

Quebec had filed an injunction (easily one of the best things the Charest government and the current interim leader Jean Marc Fournier as Justice Minister, ever did) against the feds when they inexplicably announced that they were destroying the data collected over the years by the registry, stating that they wanted the data to be transferred over to them, for the purposes of creating their very own provincial registry. A sensible and good use of taxpayer’s money. Not to mention a valuable crime fighting tool that virtually every police chief in the country supports.

But don’t expect Minister my-personal-life-is-of-limits-but-I want-access-to-yours Toews to accept logical arguments on this one, or any other issue for that matter. I’m certain it is only a matter of time before he and the government challenge the lower court decision and send the case all the way to the Supreme Court of Canada (not that they’ve had much luck their lately), open federalism be damned!

With the recent and tragic shooting of Denis Balnchette on election night, fresh in the minds of Quebeckers, they are no doubt more resolved than ever to have stronger, not weaker, gun control laws on the books. Pity that Harper’s bunch is too blinkered by their ultra-right wing views to realize that.

*Photo by mostlyconservative (via Flick under a CC license).

If there is one thing about this election that scares the shit of me—and should scare you as well—it’s the shocking declaration of Jean Francois Lisée, the self-proclaimed savior of the increasingly-ugly Parti Québecois.

Lisée said that a PQ government would not hesitate to use the Charter of Rights and Freedoms’ notwithstanding clause (yes, that’s the same constitution that he says was rammed down Quebec’s throat in ‘82!), just as Quebec has done ever since the Supreme Court found sections of Bill 101 unconstitutional.

He told an audience of radical Péquistas that his government would “have no hesitation to use the notwithstanding clause as a preventive measure,” against what he called the “Canadian” judges that sit on the court (ignoring that three of the current judges are from Québec). This was nothing short of a call for lawlessness in Québec.

And this is by no means a rogue element in the PQ. Pauline Marois may have her strong points (I’ll get back to you on that one!) but upholding the constitution is not one of them. If we look at the PQ platform in this election, we find a plethora of potential constitutional violations, some so outrageous, they’re beyond belief.

Let’s begin with the most notorious: applying bill 101 to Colleges (CÉGEP) in Quebec. Discriminatory policies has always been controversial with the courts, but this measure takes discrimination against allophones in Quebec to new extremes. They are already forced to send their children to French high schools under the current law (lets leave aside the passerelle schools loophole). Now the PQ is shrieking that students are not learning enough French and will have to go to French CÉGEPS, as well.

Aside from the fact that they are delivering the coup de grâce to the English schools that are increasingly dependant on immigrants and their children for business, they are also infringing on a number of basic Charter rights with this excessive measure. Namely: liberty (section 7) and equality (section 15) since this measure would only apply to allophones and perhaps francophones whose parents didn’t attend English schools. There are no valid arguments that this undermining of basic liberty and equality could conceivably be saved by section 1 and justifiable ‘in a free and democratic’ society.

Ditto for the PQ’s ‘secular charter’. Let’s set aside for the moment the obvious hypocrisy of allowing some religious symbols (i.e. crucifix in the National Assembly) and not others, and just look at the legality of what’s being proposed. Can we ever square the idea of fundamental religious freedom guaranteed by the Charter (section 2) with a state imposed secularism? The answer is, of course, an emphatic no.

Finally, will the PQ ever pull of their nefarious plot to prevent non-francophones from running for public office through some sort of French language proficiency test? We know that Marois had since reneged on the piece of bloody red meat to her hungry radical separatist base, but that fact that she had to reconsider her position on the issue, speaks volumes about her true intentions.

If this is what the PQ has in mind for the lucky few who will be eligible for their precious Quebec ‘passport’, I think I’ll hold on to my Canadian passport for the time being, thank you very much.