Questioning a Thinly Veiled Attack on the Rule of law
I certainly hope the national assembly does not use
the notwithstanding clause or if it does, that it is brought down by Quebec
voters for wonton disregard of not only entrenched schedules of rights but
basic common law prohibitions against bills of attainder, even if an action of attainder
is not stated by the statute it implicitly targets a discreet and insular
minority for no other reason than irrational dislike. This was overruled by the
court’s holding in Vreind at para 101-110 [yes I’m just that cool that I have
that much time on my hands that I remember the citations from constitutional
cases by memory ;P]
As T.R.S. Allen observes in his book Constitutional Justice, whose
conclusions are echoed by Luc Tremblay, even lacking an entrenched schedule of
rights, the rule of law — that is, the idea that governmental power be
exercised in a fair, predictable, and rational manner so as to be transformed
into a command capable of being assented to by a free and informed agent as a
valid reason for action in her particular circumstances, as opposed to brute
force - requires that the liberal state commit itself to certain basic norms.
And all these principles are born of the basic idea that a system of
well-functioning laws treats all citizens with equal concern and respect. This
principle animated earlier cases involving “an implied Bill of Rights,” which
was found to protect Jehovah’s Witnesses in Québec from egregious abuses of
process and religious persecution simply because the Catholic majority found
their teachings and mode of evangelism disagreeable. At the heart of these
decisions there lay a conviction that legislation and administrative action be
general in scope, and not express particular animus to vulnerable groups.
Governments must strike a proportionate balance between pursuing legitimate
objectives and protecting the liberties that ensure life is tolerable and just
for the greatest amount of persons compatible with equal liberty of others.
The legal ingenuity and constitutional vision of these
decisions notwithstanding, they reflect a time in which Anglophone Canada
thought it appropriate to engage in a quasi-colonial relationship with Québec
and, indeed, non-northern European immigrants when these were permitted to
enter Canada at all. Concomitant with the personal human rights revolution,
which commenced with the UN declaration of 1948, but only really began to gain
steam in the 70s, and in Canada came to fruition with the 1982 constitutional
amendment, there has been an equally important movement advocating for the
rights of subnational and formally colonized peoples (among whom many in Québec
number themselves) for a varying spectrum of rights related to
self-determination. A measure of autonomy for Québec, as Daniel Weinstock has
recently convincingly demonstrated, is both consistent with and required by the
liberal rule of law; for only by granting the national assembly greater autonomy
is the Québecois nation within the state of Canada able to pursue policies that
allow it to preserve the equal rights of citizens to live in a culture of their
choosing that would be assimilated by the Anglophone majority, were it not for
state action.
As Québecois minority status is largely a matter of
historical accident, much like religion, gender, or disability, this would be
unjust. Remember, a fundamental principle of the liberal rule of law contends
that persons, whether as individual citizens, or creating a life together as
members of historically situated collectivities ought not to experience
disadvantage because of morally relevant characteristics. Only with such
assurance may individuals be properly said to be self legislating, insofar as
we can at least — in a very formal way — say that they are subject to rules
they themselves could have possibly created. Because of the fact that freedom
and equality are interrelated rights and aspirations, and most often our
choices are only given actuality through meaningful interdependence with
others, travelling with them throughout a shared historical experience,
Québec’s right to determine certain parameters of living together must be
respected. Nevertheless, since the reason for such autonomy flows from the
Québecois nation’s right to maintain distinctiveness within the larger Canadian
federal state, this is autonomy must only relate to this project. The most
obvious way that the Québecois nation exercises its right to preserve
distinctiveness within the Canadian federal state and North America more
broadly is through language laws.
Hence, the federal government (justly and wisely)
decided not to overrule Québec’s controversial bill 101, even when its original
form was ruled unconstitutional by the Canadian Supreme Court in Ford v.
Attorney General of Québec (1988). The government of Brian Mulroney didn’t intervene.
It recognized that the language laws had the legitimate purpose of preserving
the French language in Québec, under considerable threat at the time. The
federal government also recognized how important language is in maintaining a
particular culture, way of being in the world, and, by consequence of its
world-shaping ability (in this respect, much like religion) the affect its
extinction would have on the ability of Québecois to be meaningfully free,
insofar as the loss of French would restrict the life-plans Québecois could
pursue, built through centuries of common experience. Obviously too, overruling
the bill would have violated the principle of equal respect and concern for
Québecois, creating a genuine political crisis. This is, however, because
language is at the heart of what it means to be a self determining nation,
whereas fashion choices are generally thought to be on the periphery of national
concern, even when regarding articles of clothing worn by state officials.
The National Assembly’s niqab restriction is a
different situation altogether. A robust and capacious conception of freedom of
religion and equal protection of the law regardless of one’s affiliation and
convictions was not something which was imposed on Québec by the 1982 constitutional amendment. Instead,
Québec’s own Charter of Rights —
which the National Assembly often
describes as essential to its project of living together offers the same
protection to religious freedom and equality as does the national Charter. Unlike the federal Charter the Québec Charter applies to private transactions as well as governmental
action. Indeed, it was primarily this fact that led to the Supreme Court’s
ruling in Syndicat Northcrest v Amselem
(2004), which was decided using the Québec
Charter. This was a landmark case which added the sincerity of belief test
to freedom of religion jurisprudence.
More broadly, when interpreting and applying either
the Québec or federal Charters in
drafting and implementing legislation, the National Assembly must be mindful of
four interwoven yet distinct constitutional maxims, each supported by extensive
case law, and, at a more basic level, justified by the principles of liberal
common law constitutionalism articulated above. First, State neutrality does
not mean, indeed, is antithetical to the idea that expressions of piety,
especially those which are inseparable from the presentation of one’s person
ought to be removed from public life. State neutrality requires the opposite;
it mandates that government create a public sphere in which all religious
adherents — and those with no transcendent convictions — are free to present
themselves as they choose, to the extent that such presentation is compatible
with the equal rights of every other subject. Second, it follows, therefore,
that the state is prohibited from privileging one conception of religion, the
proper way to wear clothing, or a systematic and closed comprehensive political
doctrine. To do so is not to treat citizens with equal respect and concern into
distinct but interrelated respects. By privileging one conception of identity,
fashion and or the good life, the state indirectly demeans facets of persons
identity (for example religion and/or sexual orientation) that they may
construe as intrinsic to their personhood. Perhaps on a more fundamental level,
to do so is also to disrespect their dignity as rational agents capable of
making reasoned judgements about the nature of a good life. Third, legislation
which is facially neutral (like the language of Bill 62 would suggest) may
nonetheless offend human rights provisions, if it is demonstrably
discriminatory in its impact and/or if the legislative context suggests an
impermissible purpose was, in fact, behind the facially neutral one given.
Fourth, claims of discrimination ought to be considered contextually with an
intersectional perspective, which gives proper consideration to the matrices of
oppression and resistance in which a claimant finds herself, and through which
she defines her own experience. Though this may seem like a overly progressive
position, it is supported by a long line of jurisprudence from the Supreme
Court of Canada which culminated in the discussion of intersectional
discrimination exemplified by the Whithler judgement.
Specifically, Bill 62 seems to be inconsistent with the
SCC’s ruling in R. v. N. S. (2012),
concerning the circumstances under which a witness may wear a niqab while
testifying. The majority opinion, written by Chief Justice MacLachlan, and the
dissenting judgement, penned by Justice Abella, unequivocally reject the
exclusion of niqab wearing women from public life, saying that it is both
inconsistent with the Canadian tradition of accepting religious and cultural
variation, and that it would further stigmatize an already disadvantaged group.
The argument that newcomers to a host society must be courteous and learn to
abide by societies laws and customs simply does not withstand scrutiny. This is
because of a very simple fact. Both the Canadian
Charter of Rights and the Québec
Charter offer protection to whomever comes within the jurisdiction of those
documents. niqab-wearing-women are following our customs when they exercise
their religious freedom and expect equal treatment regardless of this. The
federal Parliament and the National assembly have seen fit to constitutionally
entrench such values. Wearing the garment, therefore, is not an act of defiance
or hostility; it is a noble performance of citizenship, especially when this
group of women often confronts considerable and unjustified hostility — would
that every Canadian where as committed to upholding and enacting constitutional
values
Parliamentarians — whether they are members of the
National Assembly or federal Houses — have a duty to legislate in accordance
with the rule of law. In this context, the rule of law has the two following
aspects. The legislation is invalid simply on principles of manner and form.
Assuming the bill does not violate the Quebec charter but is found to violate
the Canadian charter, a dubious assumption at best. If the Assembly wishes to
breach the law, it must do so explicitly and invoke the notwithstanding clause.
Second, the proposed bill is invalid because it represents a not so thinly
veiled attack on an already disliked minority, ignoring several centuries of
parliamentary tradition, invoking the worst spectres of Canada’s regrettable
past.
Unlike the language laws, this proposed ban remedies a
threat to no one’s culture, language, or distinct society. The niqab impairs
the expression of Québec culture as much as my choice to wear a Sens hockey
jersey in Québec instead of a Habs jersey. This law will be overruled by
courts, but it is also the task of the federal government to enforce the
Constitution. There is no justice in subjecting an already stigmatized group to
expensive litigation and public scrutiny, when it is within the power of the
federal government to refer this question to the Supreme Court. While much
respect ought to be given to Quebec’s distinct society as a matter of
constitutional convention, international law, and natural justice, this ought
not to allow Quebec to contravene federal law and its own provincial statutes.
The niqab ban, in addition to affecting an already insular and often vilified
minority is a bill with far reaching and impermissible legal consequences. At
the very least, if the Supreme Court
decides to uphold the ban out of deference for the Quebec’s ongoing national
project it would need to explain to all legislative houses and all Canadians
why it would be hypothetically embarking on such a wide departure from
precedent in several key areas, a reference question would allow the court to
do this, while saving citizens from litigating an issue that has been
effectively decided by the previous case law and ought to have never arisen in
the first place.
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