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It is cowardice to look the other way as jobs for teachers and police officers are posted with the unstated rider that no Sikhs or Muslims need apply
Let us dispense with the obvious off the top. As the duly elected premier of Quebec, in possession of a majority of the seats in the provincial legislature, François Legault has the indisputable authority to pass legislation banning the display of religious symbols by persons employed in certain “positions of authority” in the public service: judges, prosecutors, police officers, prison guards, teachers, principals, and so on.
His Coalition Avenir Québec having campaigned on the promise, what is more, he has a mandate. It will no doubt prove to be popular. And since Bill 21 includes a provision invoking the constitution’s notwithstanding clause, exempting it from judicial review under the Charter of Rights (a similar provision exempts it from the province’s own Charter of Human Rights and Freedoms), it is most likely legal, as well.
So, this is something he can do.
Now, perhaps, can we focus on the depravity of what is about to take place? For the ban on religious symbols is in practice a ban on those whose faiths oblige them to wear them: Muslims, Sikhs, Jews. Henceforth, if the legislation is passed, broad swaths of the public sector will be off limits to members of these religious minorities — if not to existing employees (the legislation, unlike the CAQ election platform, promises to grandfather those, though only so long as they remain in their current jobs) then to new hires.
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Moreover, the bill incorporates elements of legislation passed by the previous Liberal government forbidding those providing or receiving public services from covering their faces — legislation that will also now be largely exempt from judicial review. So in addition to the hiring ban, we can expect a revival of the edifying debates over whether members of certain religious minorities should be prohibited from riding the bus, or taking night school, and so on.
Let us not dress this up as anything but what it is: religious discrimination, pure and simple. And, since membership in these religious minorities overlaps heavily with membership in racial minorities, it carries a strong whiff of racial discrimination, as well. That’s why the legislation came packed with the notwithstanding clause — another proud moment for its sponsors, six months after Ontario Premier Doug Ford used it to rewrite the Toronto civic elections laws.
This is the very opposite of the “religious neutrality of the state” the bill declares to be its aim. A state that were truly neutral with regard to religion would neither attempt to impose a religion upon its people nor prohibit it; it simply wouldn’t bother about it. Whereas under Bill 21 the state not only busies itself with regulating the religious iconography of its employees, but does so in a highly selective fashion, banning only those that require bodily display.
There is no earthly basis for any of this. I know it is the self-appointed role of some pundits to explain “what English Canada doesn’t understand” about the nuances of la laicité and its deep roots in the Quiet Revolution — a pretence that only avoided complete evisceration by the premier’s timely move to take down the giant crucifix that has hung these past 83 years on the wall of the legislative chamber — but it is hogwash: the impetus for this legislation was found not in the report of the Bouchard-Taylor Commission, at least one of whose eponymous commissioners has since repented of its core recommendation (and which did not include teachers or principals among its list of “positions of authority”), but on talk radio and in the columns of Le Journal de Montréal.
The state’s neutrality is not in one iota affected by the religious affiliations of its employees. When a suspect is arrested by a Sikh officer in the RCMP, where turbans have been permitted as part of the uniform for nearly 30 years, he does not tremble in fear at being forcibly converted to Sikhism. He puts his hands up and says “you got me.”
But it is not only Quebec that is thus shamed. It is the rest of Canada, as well, so far as we acquiesce in it. The use of the notwithstanding clause may have taken the courts out of play, but the rights the legislation would override remain a part of the law of the land. It is not in principle any greater incursion upon the sovereignty of a province for the federal government to uphold them than for the federal courts; it is just that we are less used to it. Yet that was an acknowledged role of the federal government, in the days before the Charter: to protect minority rights from the depredations of local majorities. It was part of the very argument for Confederation.
Whether it should use precisely the same tools as governments did then, notably the power of disallowance, is open to debate. The power is there, and has not — some claims to the contrary — lapsed. It is not a nuclear weapon, as it has been described, but a provision of law; certainly it is no more radical in its implications than the notwithstanding clause, and of no lesser legitimacy, just because one is a federal power and one is a power typically used by the provinces.
But there are other powers, and other ways for the feds to intervene. What they all require is political will. It may be that this will is in short supply: the reaction from federal leaders Thursday was noticeably timid. But we should at least be honest with ourselves why. It is not because there is anything inherently wrong with federal intervention. It is because it would be unpleasant. It is because it would anger Quebec, or at least its political class. It is because we are afraid.
That is not new. Over the years we have taught ourselves on several occasions, as a country, to accept the unacceptable: to accept, for example, that the state may forbid the display of a minority group’s language, as if it were a kind of pollution. But it will take another level of cowardice to look the other way as jobs for teachers and police officers are posted with the unstated rider that no Sikhs or Muslims need apply.
So the choice of instruments is not the question. The first question we have to ask is: is it any of our business? Are the rights of minorities still of concern to us, in whatever part of the country they may live? And if they are, and we still abandon them to their fate, then let us not dress that up as anything but what it is.
Copyright Postmedia Network Inc., 2019