Sheema Khan is the author of Of Hockey and Hijab: Reflections of a Canadian Muslim Woman.
The notwithstanding clause of the Canadian Charter is no longer an obscure legal term. Thanks to Ontario Premier Doug Ford’s recent use of Section 33 to prevent education workers from pressuring them – he invoked the clause, or threatened to do so, three times in four years – ordinary Canadians now know that their basic human rights can be suspended at any time. We are not talking here about emergency measures, nor about reasonable limits through democratic mechanisms; ours is the only constitutional democracy that potentially allows the gutting of fundamental rights in the name of what a parliamentary majority sees as a matter of governance.
Who could have foreseen the consequences of this clause?
Well, Canadian women, for starters.
When the Charter was written, women demanded equality rights – but were ridiculed in committee hearings for doing so. In 1980, Senator Harry Hays derisively countered by suggesting special rights for babies and children, because “all the girls will be working and we won’t have anyone to look after them”. A year later, more than 1,300 women took to Parliament Hill to affirm equality rights in the Constitution, affirming section 15 on general equality and proposing section 28 on rights to gender equality.
Initially, the notwithstanding clause could have been used in Article 28 as well. But women fought for its exclusion, having had the foresight to ensure that gender equality rights could not be denied by the potential whims of future governments. We owe them a lot.
And yet, today, we see the notwithstanding clause of the Constitution causing disproportionate harm to Muslim women in Quebec.
The government of François Legault has used the derogation clause preventively twice since 2019, to ensure the adoption of two bills. One of them, Bill 21, bans some public sector workers from wearing religious symbols, but lawyers have provided evidence to the Quebec Court of Appeal – which heard a legal challenge to the bill bill this month – that only Muslim women who wear the hijab have lost their jobs because of it.
Indeed, religious minorities in Quebec have felt increased alienation and despair in recent years, according to the Association for Canadian Studies. Her survey found that the situation is particularly dire for Muslim women: 73% said they felt less safe in public since 2019, while 83% said their confidence in their children’s future has deteriorated. was deteriorated.
The Quebec government touted Bill 21 as a “feminist” law, but it only reinforced prejudice and gave fanatics permission. I know firsthand: on a visit to Montreal, I was reprimanded by a middle-aged French-speaking Uber driver for wearing the hijab. At the end of the trip, he asked me not to file a complaint. (Of course, I did the opposite.)
All of this illustrates Bill 21’s flagrant violation of Section 28 of the Charter – that the law disproportionately affects women and thus violates gender equality. Since the notwithstanding clause cannot override section 28, Bill 21 could be considered by the courts to be invalid – an argument that Kerri Froc, a law professor at the University of New Brunswick, raised there. years ago and which is now gaining ground.
Muslim Quebecers do not wither. They protested alongside allies who believe in a Quebec where everyone can flourish. Take, for example, Institute F, a Montreal-based organization that seeks to secure the personal agency of Muslim women. Its programs provide resources so that every woman knows that she belongs, that her voice counts and that she is a valued member of society – even if the Quebec government thinks otherwise. At a recent Institute event, I met talented Muslim women in STEM fields such as artificial intelligence, biotechnology and data science – talents that Quebec needs to remain economically competitive. Yet many of these women have expressed doubts about their fulfillment in a society that openly discriminates against religious minorities.
Something may have to give on that front too. The labor shortage is so acute in Quebec that the town of Hérouxville – infamous for issuing a code of conduct for immigrants warning them not to stone or burn women alive – is now actively courting newcomers. Today, nearby towns help migrants find halal food. Economic reality will force the realization that attracting workers means making everyone feel welcome – not just the privileged few.
The damage of Bill 21 has been done – encouraged by the notwithstanding clause. The women who fought to have Section 28 out of the clause knew its dangers. As Canadians, we must continue this fight to guarantee the fundamental rights of all, whether they are religious and linguistic minorities in Quebec, education workers in Ontario or anyone threatened by the notwithstanding clause.
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