How Quebec’s Bill 21 could be defeated by a rarely used Charter provision

Next November, the Quebec Court of Appeal will hear the appeal of Hak v. Attorney General of Quebec on the constitutionality of Bill 21, which prohibits public service workers from wearing religious symbols.

Read more: In Quebec, Christian liberalism becomes religious authority

The trial decision affirmed the law in many respects, except for its impact on the management of minority language school boards in the province.

Despite the law’s harsh effects – mostly on Muslim women like 3rd grade teacher Fatemeh Anvari, who was expelled from a class in Quebec for wearing the hijab – one would think the appeal is doomed ‘failure.

This is because the National Assembly of Quebec attempted to exempt Bill 21 from the Canadian Charter of Rights and Freedoms by invoking s. 33 of the Charter, known as the “notwithstanding clause”.

Second. 33 allows statutes to apply “notwithstanding” certain rights and freedoms contained in the Charter, such as the general right to equality in s. 15 and the right to freedom of religion in s. 2

Read more: First Ontario, Now Quebec: The Threat Notwithstanding

Advocacy for the Women’s Charter

But what the government of Quebec seems to have forgotten is the existence of art. 28 of the Charter, which states:

“Notwithstanding any provision of this Charter, the rights and freedoms mentioned therein are guaranteed equally to men and women. »

The provision is unique in that it was drafted by women advocates – not government lawyers – and was included in the Charter with virtually no change from what they originally proposed. Its purpose was to ensure that the other provisions of the Charter worked to promote, not undermine, the true equality of all women in Canada.

When Dry. 33 came onto the scene in November 1981, these same female defenders fought an epic battle to secure Sec. 28 was not subject to it and that the notwithstanding clause could never be used by legislatures to erode women’s rights.

It was apparent from the start that Bill 21 was primarily aimed at Muslim women wearing religious head coverings (such as the niqab, exposing the wearer’s eyes and the hijab, exposing the wearer’s face).

And in fact, the trial judge of Hak v. Attorney General of Quebec found that most — if not all — of those affected by Bill 21 are Muslim women who wear the hijab, a particularly vulnerable group. He also found that it was “incontrovertible” that Bill 21 violated a number of Charter provisions.

The most obvious is freedom of religion. The invocation of the notwithstanding clause by Bill 21 therefore has a negative impact on the enjoyment of freedom of religion by this particular group of women and violates s. 28.

Furthermore, because the disproportionate and gendered effects of Bill 21 disadvantage Muslim women in various ways, it results in reduced access to gender equality, a further violation of s. 28.

People rallied against Bill 21 in Chelsea, Quebec in December 2021 after a teacher was removed from her job for wearing a hijab.

Muslim Quebec women feel less safe

While the preamble to Bill 21 states that “the Quebec nation attaches importance to the equality of women and men”, the reality is quite different.

A recent report by the Association for Canadian Studies and Leger Marketing indicates that an overwhelming majority of Muslim women feel less safe since the law was passed and report having been victims of hate crimes.

In a heartbreaking account, a Muslim woman reported that a man in a van tried to run her and her three-year-old daughter over on their way home from daycare. Two-thirds of Muslim women say they have experienced a decline in their quality of life and mental health.

As I argued in a recent article, Sec. 28 essentially blocks the notwithstanding clause where it would allow a law to apply even if it disproportionately affects women’s rights.

Bill 21’s ban on religious symbols denies Muslim women the right to religious freedom and sexual equality, contrary to s. 28.

Therefore, notwithstanding the notwithstanding clause, a court could properly rule that Bill 21 violates the Charter and that the provisions of the law resulting in inequality for women are unconstitutional.

Three women wearing hijab walk along a street.  One carries a backpack on her back.
Women wear hijabs as they stroll through the Old Port of Montreal in August 2022. As the Quebec Court of Appeal prepares to hear an appeal of a Bill 21 judgment in November, a new poll shows that religious minorities in Quebec feel less safe, less accepted and less optimistic since the province passed the law.

‘Unknown quantity’

Second. 28 is almost an unknown quantity in law. There are several reasons for this.

The first is that Charter entrenchment was initially met with a wave of demands from men seeking to roll back some of the modest protections women enjoyed under the law. Some of these claims have succeeded through judicial misinterpretation of Sec. 28. As a result, other judges have found it best to ignore or marginalize the provision.

For example, in Shewchuck versus Ricard in 1986, the British Columbia Court of Appeal dismissed a Sec. 28 challenged legislation that provided legal aid to single mothers seeking child support and forced deadbeat fathers to appear in court.

The court expressed concern that Sec. 28 would compromise the ability of judges to “critically examine” distinctions based on sex to determine whether they are discriminatory.

But that time has passed. The bad precedents of nearly 40 years ago should not be an obstacle to the responsible use of art. 28 today.

Bill 21 has had a toxic effect on the citizens of Quebec, the will of Canadians to embrace diversity and equality for women. Fortunately, the Women Defenders of 1981 foresaw the need for Sec’s antidote. 28 to overcome negative uses of the Charter, including Sec. 33.

Let’s hope that the Quebec Court of Appeal will be able to use it as prescribed.

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