A lot has been said about the new secular bill proposed by the CAQ and backed by the vast majority of francophones in the province.
Premier Legault admitted that the bill would violate the Canadian Charter of Rights and Freedoms and so to pre-empt any legal challenge, he promised to invoke the infamous 'notwithstanding clause,' which is in effect an escape clause allowing provinces to invoke legislation that contravenes certain charter dispositions for a period of five years.
In effect, they argue that the Charter of Rights and Freedoms is illegitimate as far as Quebec is concerned, yet invoking its escape clause is legitimate.
Premier Legault admitted that the bill would violate the Canadian Charter of Rights and Freedoms and so to pre-empt any legal challenge, he promised to invoke the infamous 'notwithstanding clause,' which is in effect an escape clause allowing provinces to invoke legislation that contravenes certain charter dispositions for a period of five years.
"There is a clause that allows us to protect collective rights, to derogate from the Charter of Rights and Freedoms of individuals. It has been done dozens of times before by several premiers, including Robert Bourassa. When we talk about protecting values, protecting our language, protecting what is different in Quebec, we must be ready to use it, "Premier Legault said in an impromptu press conference..." -Premier Legault
Section 33.Now the Premier and almost all francophone commentators have been quick to support and defend the use of the notwithstanding clause as a legitimate tool, even while reminding everyone that Quebec never signed on to the Charter, which was in their opinion rammed down its throat unfairly by the majority in the ROC.
- (1) 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.
In effect, they argue that the Charter of Rights and Freedoms is illegitimate as far as Quebec is concerned, yet invoking its escape clause is legitimate.
But lost in the discussion is the fact that the province has its own Quebec Charter of Human Rights and Freedoms that the proposed law would also violate, something that absolutely nobody in political circles or the media is wont to point out.
If your reaction is "Whaaaa????" you are not alone.
It is understandable that politicians are disinclined to discuss a potential violation of the tenants of the Quebec Charter of Human Rights and Freedoms because it is purely a creation of the Quebec government, brought to force by the National Assembly in 1975 under Premier Robert Bourassa.
....."the Charter of Human Rights and Freedoms stands at the pinnacle of Quebec's legal system. Only the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, enjoys priority over the Quebec charter." - Wikipedia
But alas, like the Canadian Charter, the Quebec charter has it's own escape clause found in
Article 52.
52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.All the Quebec government has to do is to include a passage in any bill expressly excluding its disposition from the provisions of the Quebec charter, something it has done over thirty times since the Charter's inception.
Some of those derogations have been mostly uncontroversial, like excluding lawyers from small claims court or providing closed-door legal proceedings surrounding cases involving children or families or forcing doctors to break confidentiality to identify patients who clearly should not be driving.
But the majority of cases involve language and identity, where the invocation of the derogation is necessary because the restrictions placed on individuals rights are clearly a violation of both the Canadian and Quebec charters.
Today we in Quebec live under eleven different laws that have benefitted from the notwithstanding elements of the Canadian and/or Quebec charters.
In relation to Bill 21, the proposed secular law, when the Premier invokes the spectre of invoking the notwithstanding clause in regards to the Canadian Charter, he stands on firm ground with his constituency, the majority of francophones and especially the media who loathe the Canadian Charter which they never approved.
But the Premier's dishonesty abounds when he fails to make reference to Quebec's Charter of Rights as if it did not exist. The Premier, nor his party, nor the media ever, ever mention the fact that the new law will require the invocation of the notwithstanding element of the Quebec charter to be attached to the law.
What is the takeaway from all this?
Premier Legault, his party and the media are being grossly dishonest in omitting mention of the QUEBEC CHARTER OF HUMAN RIGHTS AND FREEDOMS of which Bill-22 will contravene.
The Quebec government will have to use notwithstanding elements to bypass both the Canadian AND the Quebec Charters, but only dare mention publicly the Canadian Charter.
A sin of omission.
Now one of the things that bothers me about the law and the discussion surrounding it is, WHY?
Why is somebody wearing a tiny kippah or a fashionable headscarf (not a full face veil) so dangerous?
I haven't heard a cogent or reasonable argument that didn't descend into racism.
At any rate, I found this pearl amongst the many comments in favour of the ban in the Journal de Montreal which more or less sums up the idiocy surrounding the law.
Premier Legault, his party and the media are being grossly dishonest in omitting mention of the QUEBEC CHARTER OF HUMAN RIGHTS AND FREEDOMS of which Bill-22 will contravene.
The Quebec government will have to use notwithstanding elements to bypass both the Canadian AND the Quebec Charters, but only dare mention publicly the Canadian Charter.
A sin of omission.
Now one of the things that bothers me about the law and the discussion surrounding it is, WHY?
Why is somebody wearing a tiny kippah or a fashionable headscarf (not a full face veil) so dangerous?
I haven't heard a cogent or reasonable argument that didn't descend into racism.
At any rate, I found this pearl amongst the many comments in favour of the ban in the Journal de Montreal which more or less sums up the idiocy surrounding the law.
"I'm afraid that a veiled teacher is trying to influence my son with her religious beliefs. The CAQ removes her veil and presto.... I have nothing to fear.
I am a Muslim and I am afraid that the judge who wears a kippah is not neutral in his judgment. Take off the kippah and I'm now sure of his neutrality.I don't trust a policeman wearing a turban. Get rid of the turban and presto... my confidence is restored.
Are we really that stupid?"
Something else that is forgotten, or never mentioned by the media (in this case, the English media): When Robert Bourassa's government invoked the Canadian and Quebec notwithstanding clauses in December 1988 in order to pass Bill 178, the Supreme Court of Canada signs law decision that Bill 178 overrode actually found Bill 101's sign provisions in violation of only freedom of expression in the Canadian charter of rights but both freedom of expression and equality rights in the Quebec charter of rights. Thus, the Quebec charter can be seen as being -- irrespective of the notwithstanding clauses -- more protective of English rights than the Canadian charter.
ReplyDeleteThis is because "language" as a prohibited base of discrimination was removed from the equality provisions of the Canadian charter in its early draftings because the Trudeau government wanted to be free to pass legislation like the Official Languages Act which, in places, violated equality based upon language (i.e., those provisions promoting English and French provincial minority communities across Canada). "Language" is and has always been a prohibited base in the Quebec charter.
The notwithstanding clause may be available to the Quebec legislature to override so-called protected rights and freedoms of the two charters but the federal government maintains its own override to a province's override. And that "ultimate" override is the federal government's veto power which is, collectively, the disallowance clause, the reservation clause, and several other provisions of the Canadian constitution.
ReplyDeleteAs I've written on this blog countless times before, this veto power was a sacred promise by the Fathers of Confederation that they federal government would invoke it whenever and whereever a provincial government passed legislation violating the rights of provincial minorities. Sadly, this power has never been used for this purpose even once since 1867, although it has been invoked for other reasons.
Indeed, section 4(c) of the federal Department of Justice Act -- which has been around since Confederation -- was put into federal law precisely for the purpose of reviewing provincial laws by the federal government in order to determine whether said act needs to be vetoed. Section 4(c) reads:
4(c) The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall...advise on the legislative Acts and proceedings of each of the legislatures of the provinces, and generally advise the Crown on all matters of law referred to the Minister by the Crown;
So, if any reader of this blog is pissed off about Bill 21 and is equally pissed of because the federal government isn't planning on doing anything to stop it, then I suggest they write a certified letter to the federal Minister of Justice demanding -- as per s. 4(c) above -- what exactly the Minister is advising the Crown vis a vis Bill 21 (and include a copy of Bill 21's assented version in case the Minister retorts back that he hasn't received the bill yet). And just for shits and giggles, you can also throw in a demand that said bill be vetoed by the federal government. Something of course they would never, ever do because the 80% french vote in Quebec is a lot more appealing to them than the 20% non-francophone vote.
Tony, I'll do you one better, but I've mentioned it before. A few years ago in Sherbrooke, our exalted P.M. Injustice Trudope Jr. was asked a question in English and responded in French stating that French is THEE official language of Quebec. I and 57 other people filed formal complaints to the Office of Official Languages, and about 18 months or so later, I received an envelope (as did the others, I imagine) with a letter and attachments stating our complaint was founded.
DeleteThat arrogant son of a son of a bitch broke his equally arrogant Daddy's own law! Chew on THAT!
Mr. Sauga, I just experienced daddy's law differently than you.
DeletePM Turdeau: Turd is the word! Care to share what that vague ten-word sentence of jibber-jabber means?
DeleteMr. Sauga, its my defence. I use it all the time. I just experienced the interaction differently than you. Its gets me out of many unsavory situations.
DeleteNow that I've complemented Tony's response, then let's get to the matter in general: THERE IS NO CHARTER OF RIGHTS AND FREEDOMS ANYWHERE IN CANADA! CASE CLOSED!
ReplyDeleteAccording to what Tony wrote, Quebec can veto the federal charter and its own charter yet the federal charter can override the provincial charters yet they never have in 151 years thus, ergo and therefore THERE IS NO CHARTER OF RIGHTS AND FREEDOMS ANYWHERE IN CANADA! CASE CLOSED! It's all print on paper, it's all talk, no action.
About 15 years or so ago, the late Claude Ryan wrote a whole manifesto on the policies and principles of the PLQ, and right in it he wrote that the wishes of the majority ALWAYS trump the rights of the minorities so Quebec does, and has since the Quiet Revolution, acted by the supposed democratic policy of The Tyranny of the Majority. If you want to live in Quebec, put up and shut up! Nobody wants to hear from you whiny little bitches of the minority! You're welcome to move West of the Ottawa River and East of that right turn off Highway 20 past Rivière de Loup!
Sucks not being part of the Laurentian elite Eh! Mr. Sauga
DeletePhil, to answer your question at the end of your commentary,"Are we really that stupid?", the Final Jeopardy answer is: "HELL, YEAH" ...well...in too many cases...the case of the majority, that is!
ReplyDeleteWell you voted me in so I guess that answered the question Mr. Sauga
DeleteTurd, I don't know who U R, and not living in Quebec, I doubt I voted U in; furthermore, I don't see any politician using this website for your purposes. As for the question in bold print, by "we", I am pertaining to the Francophone majority who have no more insight and common sense than the country bumpkins in the backwoods of poor, hick-filled states like Mississippi, Alabama, and most regions in those other states of the Southeastern U.S. The city regions tend to have some better folks, and Montreal fits in although it has its share of village idiots as well (such as yourself, based on your response above), but I'm pertaining to places like Hérouxville, the Lac St-Jean & Saguenay regions, as well as the Magdalen Islands and their welfare-ridden bums.
DeleteI reckon the Church took 200 years to wreck the majority in your collective society's brains, so given it will take about that much time to unlearn the garbage thrown into the heads of what appears to be your ilk, you have about a century and a half to get your heads out of the gutter. Then again, if you think like the Motherland, add another half millennium to the above number.
Mr Sauga, Lol. Crankypants Sauga
DeleteYea its true..this whole notwithstanding clause is complete nonsense. If you have a charter of rights and freedoms then it should always prevail otherwise what is the point? If any province can just simply opt out whenever it suits them then might as well not have the charter. Its a toothless charter in the most important cases such as minority rights here in Quebec.
ReplyDeleteOn the other hand is it the end of the world in the end if public sector workers can't wear religious symbols..in the end likely only going to affect a few people. The reality is that minorities are grossly underrepresented in government as it is. Is it really too much to ask these people to leave their religions garments at home? I think the real issue behind this is the feeling that again minorities are being attacked..but christians also cant wear religious symbols also at work and they are still the majority.
"If you have a charter of rights and freedoms then it should always prevail otherwise what is the point?"
Deletewhat tells you that it was perfect to start with? the argument saying the charter is immutable is not good as it would suggest society does not change. it's like the constitution. yes you don't change it every other year, but saying it can't be changed is nonsense. for example not changing this charter enables dudes in alberta to drive motorcycles without a helmet or children to go to school with a knife. now that's nonsense and proves the charter is perfectible.
"is it the end of the world in the end if public sector workers can't wear religious symbols"
watch it mate, it's only public sector workers in a position of authority that are concerned: judges, everyone sporting a gun, teachers, etc. of course it's not the end of the world to answer your question.
to figure out your position on this you have to ask yourselves should someone who is so highly religious that they can't not show it off while they shoot someone, or judge someone or teach highly influencable children, have authority? of course they shouldn't!
Now why is there opposition to what seems to be such an obvious policy to put in place? in my humble opinion it's down to the fact that everyone knows this thing is going to end up in a constitutional dead end and that support for quebec independance can only rise from it at the end of the day. that's the reason why you guys are against it. you can't really say it because you would therefore justify quebec's independance, so you need to stick with the charter of rights dogma crap.
to figure out your position on this you have to ask yourselves should someone who is so highly religious that they can't not show it off while they shoot someone, or judge someone or teach highly influencable children, have authority? of course they shouldn't!
DeleteI think that assumes that only people wearing religious symbols are highly religious which is often not the case. There are many highly religious people who wear no obvious symbol so they will continue to be untouched. Then there are all those public servants in power who have other stong biases..whether it be racist, sexist, or nationalist beliefs who will not be touched by this. So in the end its a pretty naive law which will still leave many dubious people in power. If anything there are too many "pur laine de souche" people in the public service and in power to begin with along with their biased views of the world. Anglophones and allophones are woefully underrepresented in the quebec public service..francophones are over-represented in the federal public service. So, this law may be more about trying to keep this unfair balance in place.
I have to ask why this is the literally the first major policy change that Legault and the CAQ decided to implement. It is telling..telling that even though Quebecers aremore concerned about the health system and the environment and high taxes that Legault and the CAQ decide this is the priority. There is certainly a smell of veiled racism in the air. As someone said before it looks like the CAQ are in fact PQ-lite.
@complicated
Delete"Then there are all those public servants in power who have other stong biases..whether it be racist, sexist, ..."
of course other people are in power that shouldn't. not a reason not to try and better the situation.
"why this is the literally the first major policy change that Legault and the CAQ decided to implement."
two reasons, first they were voted in for this and promised it would be addressed quickly. i hope you're not suggesting they should not have held their promise. second reason is they wanted to get rid of this quickly to avoid still having to debate this when next election comes. i think caq agrees the issue has been hanging long enough.
of course other people are in power that shouldn't. not a reason not to try and better the situation.
DeleteI still am trying to comprehend the big "threat" that someone wearing a hijab or other symbol makes. I think in the end the most competent person should be chosen to the position and we clearly do not have this in Quebec as anglophones and allophones are way way underrepresented in the Quebec public service. 22 percent of the population of Quebec is either anglophone or allophone and we have 90+ percent of quebec public service as pur laine francophone. I do agree that face coverings should never be allowed for security reasons..one must have to identify yourself but otherwise is it really a big deal? I personally find this issue overblown..its an insignificant problem not looking for a solution. Quebecers in general do not care about this..politicians care more and are using this to stir up the whole us versus them debate so they can score political points..that's what is sad. I have met so many incredibly competent women wearing the hijab..at first it seems odd but then when you see the person behind you understand its irrelevant. Then you see other people who do not wear religious symbols who are just totally incompetent and borderline racist in positions of power..you gotta shake your head. We are going to lose a lot of highly qualified people..when there is a job shortage on top of it..they are desperate for teachers in Montreal..this will not help.
"why this is the literally the first major policy change that Legault and the CAQ decided to implement."
I think they were voted in because people were fed up with the Liberals even though ironically the Liberals actually did a pretty good job for once under Couillard notably on the economy and the fiscal situation of Quebec. In poll after poll Quebecers priorities were health system, education, economy, environment, and eventually down the list immigration. So it it not a top priority and it is not the main reason Legault got elected.This is to appease his somewhat racist rural base. Unfortunately we dont have true democracy either as rural areas have a disproportionately higher weighting in the electoral system than their numbers warrant. Montreal island should have several more seats based on population. So we have a provincial government that is more representative of rural areas than the largest city by far and largest economic centre by far..thats not democracy.
https://nationalpost.com/opinion/sam-allison-quebecs-gerrymandered-riding-map
https://ici.radio-canada.ca/nouvelle/1120623/elections-enjeux-education-economie-environnement-souverainete
complicated, complicated, complicated: I imagine you've been around for a long time, but perhaps not as long as I perceive. The truth is it's the so-called federalists that have screwed the minorities more than the separatists. Bills 22 + 178 = 200 - Bourassa, the alleged federalist, brought down these two pieces of legislation to strangulate the free usage of English. That "200" represents the fact Robert Bourassa managed to screw the minorities, esp. English 100% x 2, with Bill 22 in 1974 and then Bill 178 in late 1988. Two screw jobs in 14 years. Where the Bourassa nightmares ended, the Charest extended.
DeleteSince minorities are not the determinant of Quebec elections, screw the minorities! That only worked in the 1995 Referendum, and Jacques Parasite let the minorities know it, namely the Jews, Greeks and Italians, and he so singled out those three minorities about seven weeks after the Referendum while on a political junket in Calgary. When he blamed "money" (and subsequently "the ethnic vote"), he had his guillotine blade over the necks of the Jews...it's painfully obvious.
Had Parasite gotten his "+1", he admitted he would have declared sovereignty right away, and if you now see what BRexit is doing, the result of that would be nothing compared to what Quebec would have gone through. How so? Britain never adopted the Euro and already has its own nations. Quebec does not have its own currency, and would have fights with First Nations people. Far more complicated, and Britain is having its own complications. Think things will be settled there in 6½ months? Think again.
Enough digressions! Bottom line: Daddy Trudeau wanted the Constitution to be his legacy, his big mark on Canadian history. The necessity: He had to make compromises, esp. to Western provinces by adding the "Notwithstanding Clause". The result: A paperless tiger, or much ado about nothing. Now? Everybody and his brother in provincial office is threatening to, or actually use the "Notwithstanding Clause".
As for "gerrymandering" the constituencies, the Liberals had all kinds of time and mandates to reform the electoral map, but didn't. Tough luck now!