In early December 2021 Fatemeh Anvari, a Quebec Teacher, was removed from her Grade 3 classroom for wearing her hijab at work. (She wasn’t fired but assigned to other duties.) She was removed because Quebec’s Bill 21, reflecting the secular nature of Quebec society, prohibits wearing religious symbols (like the hijab, kipah or turban) at work in public sector work places by employees like judges, police officers or teachers. 

If legislation can prohibit wearing religious symbols at work, with no visible human impact, it makes that law seem less controversial.  But removing Fatemeh Anvari from her classroom put a human face to the law, the face of a visible minority woman.  Anvari’s removal sparked an outcry among parents and students at her school and by Canadian politicians who denounced the legislation as Islamophobic.

Bill 21 is very popular in Quebec, and very unpopular in the rest of Canada.  But there are two sides to most stories, including this one. 

The Quebec Side

The Quebec side is well explained by historian and former diplomat Ed Whitcomb, who traces the origin of public servants not wearing religious symbols as far back as the French Revolution.  He then explains Quebec’s current situation, and the various issues in dispute, in Policy Options:

In Quebec, the Quiet Revolution of the 1960s separated church from state, and civil servants who provided services to the public stopped wearing crosses. The consensus began to change, however, with the arrival of francophone Muslim immigrants from countries that have not separated church from state. Some of these immigrants insisted on indicating their religion while at work. This increasingly annoyed the Quebecois, who regard the 1960 separation of church from state as one of the most important developments in their entire history. Having civil servants demonstrate their religion was a throwback to what was now regarded as an intolerant, illiberal, inequal and bigoted past. Pressure grew to ban the wearing of all religious symbols by those civil servants who serve the public directly.

There are four sides in this dispute and all are, in a way, correct. Canadians living in Quebec should have the right to wear religious symbols. Quebecers should have the right to be served by civil servants who do not indicate their religious preference. The Quebecois should have the right to decide what laws their government passes. And Canadians have a duty to protect the rights of Canadians everywhere. The problem is that these legitimate rights are irreconcilable. The questions, then, are a) which ones will prevail and b) who will make the decisions?

How the Charter Works, or Doesn’t

Discrimination on the basis of religion is expressly prohibited by the 1982 Canadian Charter of Rights and Freedoms, a part of our constitution.  The purpose of a Charter in a democracy is to protect minorities from what French historian and political theorist Alexis de Tocqueville, in his study Democracy in America (1835–1840), called “the tyranny of the majority”. However, as explained below, Canadians’ Charter rights can, effectively, be switched off by a government invoking the Charter’s “notwithstanding clause”, which says that the discriminatory law will operate notwithstanding the Charter.  

That clause was not an accidental oversight.  It was an addition to the draft text, inserted at the insistence of several premiers, led by Saskatchewan Premier Allan Blakeney, who was also a serious legal scholar. He told Prime Minister Pierre Trudeau that he feared that unelected judges would force unwanted US style judicial law-making on his province. Blakeney wanted to use the power of “positive discrimination” to protect Saskatchewan’s way of life, despite the Charter. (In a lengthy interview 25 years later, Blakeney set out his reasons for fearing that judges, Canada’s New Aristocracy, who are “after all, just red-robed patronage appointees of the prime minister” would usurp Parliament’s functions.)

In response to Blakeney’s concerns, three Attorneys General, the negotiators for Saskatchewan (Romanow), Ontario (McMurtry) and Canada (Chretien) worked behind the scenes, without Quebec. They intended to limit the power transferred from provincial legislatures to the Supreme Court. They produced the famous late night “kitchen accord” which added the notwithstanding clause to the Charter. Prime Minister Pierre Trudeau accepted the deal, so the Charter became part of our constitutional law. The CBC archives of 1981 has an interesting video of these events, with commentary by Peter Mansbridge and Mike Duffy as well as speeches by the PM and the Premiers, including a strong objection by Quebec Premier Rene Levesque.

Quebec, which has never approved the Charter, has enacted its own Charter.  However, the Canadian Charter is applicable in Quebec, despite its objections, because all provinces are bound by the constitution.

Once a radical new constitutional provision like our Charter has been enacted its future uses are often unpredictable. Ironically, Quebec today is using a clause it has never approved, put in by a western province to protect its rural agrarian culture, to protect Quebec’s unique secular culture.  

There is another “out” in the Charter, in section 1, which has been used more often than the notwithstanding clause:

1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 1 demonstrates that even without the notwithstanding clause, Charter rights are not absolute. Governments can infringe them if the courts determine that the infringement is reasonably justified in a free and democratic society, and only minimally impairs the right.

Let’s consider a hypothetical court case in which Bill 21 does not contain the notwithstanding clause, but relies instead on Section 1. In its defence, the Quebec government could argue that its law does not discriminate against Islamic religious symbols alone, but discriminates against the symbols of all religions equally. Whether this would help or hinder the case is uncertain. The law also minimally impairs religious freedoms because it affects only public employees in positions of public power in public sector work places. It doesn’t affect wearing religious symbols at home, or in public places like stores or restaurants or even when visiting government offices as ordinary citizens. For these reasons I think Quebec could have had a chance of success in a Quebec court using Section 1, without using the notwithstanding clause. But Charter litigation is a slow and risky process for a government. The use of the notwithstanding clause reduces or virtually eliminates the government’s risk.

The Court Challenge of Bill 21

The Montreal English School Board has challenged Quebec’s law in court, but this case covers English schools only, a small minority of Quebec schools. It doesn’t cover occupations other than school employees.

The Quebec trial court upheld the law, but created a narrow exemption for English language schools because section 23 of the Charter protects minority-language education rights and that section is not subject to the notwithstanding clause.  The Quebec government has appealed the part of the decision exempting English language schools.  The issue may ultimately be decided by the Supreme Court of Canada, a delicate situation, as only three of the nine judges are from Quebec.

I was not surprised by the court decisions in this case.  With the Charter argument switched off by the notwithstanding clause there’s not much, if anything, left to argue against the law.

Why No Federal or Provincial Government Interventions?

There has been growing pressure on the Prime Minister and some provincial Premiers to instruct their lawyers to intervene in the litigation on behalf of the plaintiffs, but the pressure has been resisted. Why hasn’t the federal government or any other provincial government intervened to support the plaintiffs?  First, because they have been warned that such a ganging up against Quebec is likely to do more political harm than good; and second, because these governments may also want to infringe Charter rights in future, as some have in the past. 

Why Municipal Interventions?

Some municipalities from outside of Quebec (e.g., Brampton, Toronto, Calgary) have decided to intervene in the case to support the plaintiffs’ position. Why are these municipal governments so enthusiastically attacking a Quebec provincial law that doesn’t affect any of these municipalities’ residents?  Because it is risk-free virtue signalling, popular with many of their voters, and the municipalities have nothing to lose if the case against the law ultimately fails.

Conclusion

Has the Charter now become useless because of the notwithstanding clause?  No, that would be unduly pessimistic.  However, as Fatemeh Anvari’s case demonstrates, certain rights protected by the Charter can only be exercised within the control of the federal or a provincial government.

Should this situation be changed? On Alan Blakeney’s view it should not, as the Charter’s limits on the judicialization of essentially political decisions are working as they should. The USA has had a Bill of Rights since shortly after it was founded, but for some 70 years it did nothing to stop chattel slavery. It is difficult to demonstrate that a country will actually respect human rights more if it has such rights written into its constitution.

Can this situation be changed? Not quickly or directly.  As the notwithstanding clause protects the controversially discriminatory laws of provincial governments, they wouldn’t accept a constitutional amendment to remove it.

Only with the passage of time in five year intervals, and a change in Quebec’s public opinion, could Bill 21’s notwithstanding clause be allowed to lapse. That is equally true of laws of other provinces that have relied on this clause.

The lesson to be learned from Bill 21, like other civil rights issues in Canada and elsewhere, is that even constitutionally guaranteed human rights are rarely absolute.  The line between the democratic principle of majority rule and the tyranny of the majority is often a fine line, the location of which is debatable.  Bill 21 won’t be the last such debate.