Transcript
Speaker: I'm Jane Williams. This is the Red Eye Podcast. You can hear our live broadcast on Saturday mornings from 10 till noon at 100.5 FM in the Lower Mainland.
Speaker: On the podcast today, Law Prof. Natasha Bakht joins us to talk about the Supreme Court of Canada's leave to appeal Quebec's Law 21. In January, the Supreme Court of Canada announced that it would hear a challenge to Quebec's secularism law, known as Bill 21.
Speaker: This is the law that prohibits certain public sector workers from wearing religious symbols while performing their duties. Those challenging Bill 21 argue that the law imposes discriminatory treatment mainly on Muslim women.
Speaker: They hope this case will give the court the opportunity to set parameters around the use of the notwithstanding clause. Natasha Bach joins me today to discuss Bill 21 and the upcoming case.
Speaker: She is a professor in the Faculty of Law at the University of Ottawa. Hello, Natasha. Hello there. Now, Muslim women who wear hijabs and other visibly religious minorities have been living with the ongoing effects of the law for more than five years.
Speaker: What has the impact been on them in terms of employment? Well, I think the impact has been quite devastating. It has meant that Muslim women and other religious minorities who wear visibly religious symbols can't work in the public service of their choice.
Speaker: So you can imagine a law student who has gone to school for three years and had hoped to become a prosecutor, but she wears a hijab.
Speaker: she's suddenly being told that she cannot ah find a job as a prosecutor because that is a job in the public service and she wears a hijab. So, you know, it's been it's been really awful, I think, for people who have had dreams dashed and not because they don't have the training or they don't have the expertise to do these very important jobs, but simply because the legislation assumes that they are unable to be neutral toward other people by virtue of the clothing that they've chosen to wear.
Speaker: you mentioned the lawyer case, but it's also judges, it's public school teachers. It's school teachers, it's principals, it's a lot of people. And the National Council of Canadian Muslims recently did a report where they tried to examine the impact of Law 21. call it 21 instead of Bill 21 because
Speaker: Bill 21 suggests that it's still in bill form, but this is in fact a law that has been enacted. So the National Council of Canadian Muslims did a report looking at the impact of the law on Muslim women in particular.
Speaker: And actually what they found is that the reach of this law has actually gone beyond the legislated text. So now Muslim women who find themselves working in retail are being told by their employers that they shouldn't be wearing the hijab, even though Law 21 doesn't apply to a cashier working in a clothing store or in a grocery store. But you see what ends up happening when you have exclusionary laws is that you feel the impact of the law itself.
Speaker: outside of the parameters of the text. And that is that's a very common practice. And that's extremely unfortunate. I mean, what it means is Muslim women and religious minorities have been really living with the effects of exclusion and a sense of not belonging. And you know, there's been a huge increase in human rights violations.
Speaker: um We're seeing Muslim women who are being attacked on the streets. And it's really just because, you know, people look to law for morality. And when the law is discriminatory, it suggests that it's okay to treat vulnerable people in a way that is negative.
Speaker: Let's take a look at the Notwithstanding Clause. Remind us what Section 33 of the Charter, which is what it is, actually does. Okay, so Section 33 of the Charter is called the Notwithstanding Clause.
Speaker: And it's called the Notwithstanding Clause because it allows the federal government or a provincial or territorial government to enact laws notwithstanding that these laws may contravene certain sections of the Charter.
Speaker: And the sections that are relevant are sections 2 and 7 through to 15 of the Charter. And section 2 involves religious freedom, freedom of expression. There are a whole bunch of legal rights that are in there.
Speaker: And section 15 refers to the right to equality. So a government can say, we're going to enact a law and we're going to invoke section 33.
Speaker: And that means that if the law is unconstitutional, then the law will remain intact or in force, even though it could be found to be unconstitutional.
Speaker: So can you remind us why it was included in the charter in the first place? So in 1982, when the Constitution was patriated, it was the first time that we were going to have a charter of rights and freedoms.
Speaker: The prime minister at the time, Prime Minister Trudeau, along with the various premiers of the provinces, had to come together to agree to have this charter of rights and freedoms.
Speaker: And there were some provinces who were concerned that it might unduly constrain the government. And so it's really kind of seen as a historical compromise.
Speaker: Section 33, allowed certain premiers to say, okay, we will sign on to... this Charter of Rights and Freedoms as long as Section 33 exists.
Speaker: And the sort of rationale at the time behind Section 33 was that it ensured that there was parliamentary supremacy. So what the Charter of Rights and Freedoms does is it allows judges to look at the law and see if it is constitutional or in line with the various rights and freedoms that are in the Charter.
Speaker: And if a court finds that no, something is not constitutional, then the court can declare the legislation or a provision of the legislation of no force and effect.
Speaker: So what Section 33 does is allow the government to have the final word and to say, well, court, you may have found that this provision is unconstitutional, but in this case, we're going to invoke Section 33 and say that the legislation will remain in place despite this violation of the Constitution. And Section 33 allows this opting out, if you like, of the right for a five-year period.
Speaker: The Quebec government invoked the Notwithstanding Clause and also a similar section in the Quebec Charter of Human Rights and Freedoms, and they did it preemptively when they wanted to bring in this law.
Speaker: Why did they do that? So to do it preemptively means that even before an individual or an organization was able to challenge the law and we were able to get a declaration from the court on the law's constitutionality, even before that,
Speaker: As they were enacting they the law, they preemptively enacted Section 33. That's unusual, and that is not the way in which the framers of the Constitution envisioned Section 33 would be used.
Speaker: I think they really saw it as a kind of dialogue between the courts and the legislature. And I think the reason the Quebec government did this is because they knew that this law, Law 21, is unconstitutional, that it does violate Section two a freedom of religion, and Section 15, equality of these minority communities. So I think they did it because they wanted the law in place. It had a majority of popular support from the province.
Speaker: And so they did it because they wanted the law in place. And, you know, we're seeing one of the things that we're seeing with Section 33 is when in 1982, when the Charter of Rights and Freedoms, including Section 33, was established as part of our Constitution, the feeling was that Section 33 would be rarely used.
Speaker: It would be rarely used because people thought that a government that used it would do so to its political peril, that voters would vote out at that government. Now, in in the early days of our Constitution, our Charter of Rights and Freedoms, the Quebec government did routinely use Section 33, but they did it as a kind of protest to Quebec being left out of the patriation of the Constitution.
Speaker: What's different about the use of Section 33 now is that we're seeing many governments using it or threatening to use it on a regular basis.
Speaker: And what's different about Quebec's use of Section 33 this time is that they've also invoked their provincial notwithstanding clause, which is Section 52 of the Quebec Charter of Human Rights and Freedoms,
Speaker: And let's be clear, the Quebec Charter of Human Rights and Freedoms is you know a very strong document. It's got stronger protections probably than even the Canadian Charter of Rights and Freedoms.
Speaker: So Quebec's use of both override provisions really suggests a kind of irreverence towards this understanding of entrenched rights.
Speaker: So it's not a protest against Ottawa in this case. it's ah It's ah more of just like, we want to do this and we're just going to do it. That's right. It's really a belief that rights for individuals are not that important.
Speaker: Is it actually the case that there are no limits on the ability of governments to override our charter rights? That that they can just invoke the notwithstanding clause and they can do what they want? Is is that actually legally the case?
Speaker: Well, it certainly seems that way. I mean, there are some rights in the Charter that cannot be opted out of. So, for example, the right to vote is a right that does not apply with respect to Section 33.
Speaker: But some of the most fundamental rights, like... Religious freedom, equality, mobility, these are rights that you can opt out of.
Speaker: So, you know, what it suggests is, i like to compare it to we have had some terrible human rights abuses in the past. I think of the internment of Japanese Canadians in World War two We have had a Chinese head tax on immigration from China.
Speaker: We have had ah Indian residential schools. These are horrible human rights abuses that we are really just coming to terms with today. And in fact, the impact of these severe violations of human rights have been felt in the context of indigenous residential schools for generations.
Speaker: And these are all human rights abuses that the federal government has apologized for. It's apologized for and said, we have to do better. We teach in our schools these human rights abuses in order for our children to understand the history and so that we don't repeat it.
Speaker: But all of these abuses could theoretically be repeated if a government were to invoke Section 33. And that doesn't seem right. And I think it's a bit incredible when you think of that.
Speaker: And I think people sort of think, no, that couldn't happen in Canada today. And I think that instinct that no, that couldn't happen today um is because we have a view that our constitution has an irreducible minimum core of human rights.
Speaker: And I agree with that idea. And so I think what we need is for the Supreme Court of Canada to put some parameters on the use of Section 33, because surely it can't allow for ah government.
Speaker: And we have you know a rising populism these days. We see this in our neighbors just south of us. We see it in many European governments. So it's not irrational to think that politicians have some crazy ideas about not protecting minority communities.
Speaker: So the Supreme Court of Canada has allowed the appeal. So does that then suggest that they see that there's an irreducible core of human rights?
Speaker: Well, I think what it suggests is that they believe that this is an important case with national implications. And so they want to hear the submissions that are being made.
Speaker: And the Law 21 case has made its way from the Superior Court in Quebec. And the Superior Court judge was really very clear and said that the law has a cruel and dehumanizing impact on Muslim women.
Speaker: So was really clear about the impact on women. And the lawyers in this case have been making all sorts of really interesting, creative arguments to essentially say that this invocation of Section 33 can't mean that we are going to discriminate against ah community of religious people.
Speaker: But it hasn't had the legal impact that we would hope. What the Court of Appeal in Quebec said when the case went up to them was that Section 33, essentially it seems to be that it it's a blank check, that once governments have invoked Section 33, there appears to be nothing that can be done about it.
Speaker: And so it's great that this has now been granted leave at the Supreme Court of Canada. I think most legal experts were expecting this to happen. And now it remains to be seen what the Supreme Court will do with this case. And I think that they do understand what the importance of this case is.
Speaker: The question is what they'll do. Do we know what the time frame is for the case and the decision? We don't know. I suspect the hearing will be sometime in the fall.
Speaker: And usually a decision can take four to five months before we we we get the decision. Well, thank you so much for talking to me this morning and and explaining it all. It's very complex, but you made it very clear.
Speaker: Okay, good. You're welcome. I've been speaking with Natasha Bach. She's a professor in the Faculty of Law at the University of Ottawa. You can read the article she co-wrote with her colleague Linda Collins at theconversation.com.
Speaker: The article was published on January 30th. You've been listening to the Red Eye Podcast, produced by an independent media collective based in Vancouver. If you enjoyed this episode, it would be great if you left a review on Apple Podcasts.
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Speaker: And you can follow us on Blue Sky at Red Eye Radio. I'm Jane Williams. Thanks for listening.
