Supreme Court Hearings on Quebec Bill 21

 The Supreme Court of Canada (SCC) is holding hearings in the matter English Montreal School Board, et al. v. Attorney General of Quebec, et al.  Before you yawn and walk away, this is probably the single most important SCC case in 20 years.  I've written about the arguments in some depth here.

Among the issues on the table is very much the question "Does the Charter of Rights and Freedoms truly apply to all Canadians, or do we have a patchwork of rights where provinces decide what rights are available to Canadians living in their borders?".  Do I have your attention yet? 

Let's talk about that:

We Are In A Constitutional Crisis

We Are In A Constitutional Crisis

Lots of people are arguing that if the Supreme Court of Canada (SCC) rules to restrict the Notwithstanding Clause (S33) or the Governor General dusts of the disallowance powers, that it wil trigger a constitutional crisis in Canada.  They are mistaken.

The minute Alberta and Quebec decided to legislate to unreasonably restrict or eliminate rights guaranteed under the Charter, they thrust a constitutional crisis upon all of us.

Quebec, with its "Bill 21" has imposed an unreasonable limitation on religious freedoms for those who work in the civil service of that province.  Quebec’s CAQ government has wrapped a thinly veiled attack on non-Christian faiths in a blanket ban on religious symbols and public prayer.  I don't care how much you want a "secular society", this is going way beyond anything that is defensible under S1 of The Charter. 

In comparison to Quebec, Alberta has been much more aggressive, using S33 to strip workers of rights to collective bargaining, labour action, etc. and to attack transgender people in Alberta.  Further, several of the UCP's more recent actions involve "invoking" Smith's so-called "sovereignty act" - a piece of legislation where the government claims it can simply ignore laws from Ottawa that it doesn't like.  Arguably, that law is on its face unconstitutional - it's little more than a power grab on Alberta's part. 

Make no mistake about it, we are in a constitutional crisis right now.  The minute that two provinces decided that they could redefine what rights citizens in their provinces could enjoy for purely ideological reasons, we were thrust into a crisis. 

Quebec's use of S33 with Bill 21 does not stand up to scrutiny - especially not when it came out in the wake of a failed bid to ban hijabs and other "traditional" headwear.  Bill 21, although it doesn't say it, attacks those whose religiosity is publicly visible - to what end?  What crisis is this addressing that makes the invocation of S33 justified?  As far as I can tell, there is none.  

Similarly, Alberta's use of S33 are indefensible.  The teacher's strike issue might contain a shred of justification in that it is important to resolve the strike quickly.  However, it fails on a subsequent test of whether the government had used (and failed) all of its statutory options - however the government left any number of instruments on the table, up to and including binding arbitration, and went straight to the nuclear option.  

The Alberta government's anti-trans legislation is based on a horrendous amount of disinformation, lies, and hysteria.  It does not stand up to any kind of scrutiny - the evidence it is based on is largely the same pseudo-science evidence that gave us The Cass Review in the UK.  I cannot imagine any aspect of Bills 26, 27 and 29 standing scrutiny under S1 of The Charter.  Smith went to the Notwithstanding option when it was becoming clear that those laws would collapse in the courts under Charter review.

How exactly does Alberta and Quebec end up in what seems like a most unlikely alliance?  Well - truthfully, I don't know the exact answer to that, but we do have some clues.  Really, it stems back to Kenney courting Alberta's extremist fringes, and then musing out loud about "the flames of separatism".  Kenney would go on to provide political support to the "Yellow Vest Convoy" and the subsequent "Freedom Convoy" protests.  Kenney definitely set the UCP on course to align with a separatist/isolationist government in Quebec. 

It should not come as any surprise that a separatist leaning government in Alberta would pivot towards asking Quebec for advice.  It's an old saw in Alberta politics that Quebec receives unmerited "special treatment".   So, an Alberta government desiring to "have more influence" might well look to Quebec for ideas and political strategy.  

Make no mistake about it, Danielle Smith has played a central role in pushing things to where they are.  It is a crisis, and it is a constitutional crisis.  Just because you aren't directly affected by the rights that have been revoked by the UCP in the last 2.5 months, the fact is that the UCP has declared that they see themselves as the final arbiters of what rights you are allowed in Alberta.  If this is allowed to stand, the use of the language "guarantees" in The Charter becomes meaningless, and that would be the most significant change to human rights in Canada since 1982. 

Consider the implications of major cases before the SCC now:

S33 has been used to limit rights without any kind of urgent situation in play.  Sure, Smith and the UCP will argue that there is "urgency" around Bill 26 because "there might be harm to children", and Legault's government no doubt argues that there is "urgency" in fostering a "secular society" that is free from religious symbolism.  Neither party has shown that they are responding to an actual emergency situation.  The governments in both cases could have taken far less drastic steps than they have to develop a basis upon which to act.  

Having taken the actions that they have, Alberta and Quebec have essentially taken the position that "provincial legislatures get to decide your rights".  Think about that carefully for a few moments.  This means that the entire civil rights regime in Canada for the last 40+ years has just been upended and is now very much in limbo.  Your fundamental rights under The Charter at this point are no longer guaranteed as a Canadian.

I want to be very clear about how dangerous that really is.  The approach being taken by the provinces is essentially "we can legislate however we like, and you have to just suck it up".  This is extremely dangerous for minority rights in Canada - especially gender and sexual minorities who are already subject to significant discrimination and marginalization.  Looking at Quebec's actions, even religious freedoms are subject to arbitrary limitations made by governments who decide that they don't like one religion's practices.  

Pick any other right you can think of, including matters of justice.  A province could decide that it is going to legislate that "anyone accused of a certain class of crime must be held in custody", and presto, there goes your right to bail.  Again, even though that is technically criminal law, the province could still invoke S33 to enforce it.  Similarly, a province could decide that a people with particular characteristics need to be held in custody "for their own good" (see Alberta's approach to addictions), and invoke S33 to prevent challenges based on "security of the person" and other individual freedoms.  

This is very much a crisis.  It might not affect your rights today, after all trans people are only a fraction of a percent of the overall population, and likewise, members of the Quebec civil service are also a relatively small fraction of the population of the province.  You probably know people who are affected by these changes directly, but because they don't affect you directly, it may seem a little abstract.  I encourage you to look through history where governments have chosen to strip people of rights for political reasons, and consider the idea that a government willing to strip one group of rights is more than willing to strip you of yours. 

If allowed to stand unchallenged, Danielle Smith and François Legault may well have ended the ordered constitution of Canada. 

The Politics Of Othering

I don't like Pauline Marois.  I never have.  Frankly, she reminds me of a teacher I had in grade 6 who ruled the classroom through fear and intimidation ... and she keeps on using political tactics that reek of the same stupidity.

Today's entry into the race for the bottom that is the Quebec Election comes from Marois in the form of "voter fraud" claims.

The PQ called a news conference Sunday morning to express concern about media reports of English-speakers and other non-francophones from outside the province trying to vote in the April 7 election. 

PQ candidate Bertrand St-Arnaud wants the province's chief electoral officer to closely examine attempts to register to vote. 

"We don't want this election stolen by people from Ontario and the rest of Canada," St-Arnaud said.

Really?  ... and just who might this sudden influx of anglophone voters be?

The comments come after the head of an electoral office for a downtown Montreal riding, Sainte-Marie-Saint-Jacques, resigned on Friday over concerns about the registration process. 

Mathieu Vandal told Montreal's Le Devoir newspaper there had been an increase in the number of non-francophones trying to register and he wasn't confident voters were being properly screened.There have been numerous reports recently of English-speaking university students trying to register to vote in the election. 

Some students have complained they were turned away even though they believed they had the necessary documentation. 

Oh ... students.  Well yes, there's so many of them in Quebec that if all of them voted, they might be able to sway a seat or two.

Of course, this is actually the PQ playing two wedges at once.  The first wedge being to riff on Poilievre's claims of "widespread voter fraud" (which we know are BS), along with playing a blatantly racist card - namely whipping up fear of "anglophone voters" trying to steal the election among rural, french speaking Quebecois voters.  (The so-called "pure laine Quebecois" who have been the backbone of separatist movements in Quebec for years)

Quebec has a population in the 8,000,000 range (give or take a bit), with a fairly large number of post-secondary educational institutions - somewhere around 70 colleges, and 17 universities.  Even if all of them are the size of the University of Calgary - some 20,000 students, that's still a relative handful of voters - even if they were all anglophones from outside Quebec in the first place.

Of course, Marois has been playing divisive politics since she rolled out the bogus "Charter of Quebec Values" legislation, and it's only going to get worse as her polling numbers slide.  Like Harper (whose playbook she seems to be liberally borrowing from), she can't seem to see anything other than hostile solutions to the problems she faces.  

It's unfortunate, but not entirely shocking.    In some ways, Harper and Marois are political allies.  

Harper doesn't care what happens in Quebec - it just creates opposition seats as far as he is concerned, so if Quebec chose to separate it's to his political advantage.  Marois, of course, doesn't want to see anything working in Quebec's favour federally so that she can claim that "Federalism Doesn't Work" (which really makes the SCoC decision WRT Marc Nadon a double whammy - it shoots both Harper and Marois' positions full of holes).

Frankly, I don't believe that the majority of Quebec wants to even consider a referendum on separation at this time.  Marois got elected the same way Harper did - it wasn't a vote _for_ the PQ, it was a vote against the incumbent government that had been in power too long.  Now that the referendum discussion is back on the table, she's back-pedalling fast trying to change the channel.

Harper: Bad For Canada

I swear that Harper has to be the most clueless PM that I have ever seen - especially when it comes to dealing with anything remotely divisive.

In speaking about a re-enactment of the Battle of the Plains of Abraham, we find Harper's infallible instinct to poke someone in the eye coming to the surface:

"What I know is this: For most Canadians and most Quebecers, that battle is an important event but it is an historical battle," the prime minister said to a burst of applause from workers at Montreal's CAE plant when he repeated the remarks in English.

He said the Bloc Quebecois "want to keep fighting today."

"Most Canadians have moved beyond this. We're not fighting battles across the country in workplaces like this. English-and French-Canadians work together and we're going to continue to keep this country together forever."

Can this blockhead be any thicker? Has he ever studied the french perspective on that battle? I doubt it - otherwise he might be just a little more reserved in his words on the subject.

Instead, what he does is come along, and try to make yet another partisan poke at Quebec. Obviously he either is downright malicious when it comes to Quebec, or he has absolutely no clue about that province.

I'm not saying that you handle Quebec "with kid gloves", but rather you handle it with respect. Harper is not being respectful, he's being cold, high-handed and arrogant about the matter. Re-enacting that battle will inflame separatist sentiment in the province.

I don't suppose I should be particularly surprised by this. Harper has made it clear that he is mendacious, petty and vengeful...and Quebec hasn't exactly rewarded his overtures with support at the polls.

However, that said, Canadians - and Quebeckers are Canadians - deserve to be treated with a degree of respect by their Prime Minister. Instead, what we see is the inflammatory rhetoric that is divisive and destructive. Canada has enough problems right now, without its Prime Minister trying to reignite the flames of Quebec separatism.

Do I really need to point out that Quebec's separatists have had their greatest political gains made during times of economic downturn?) Rene Levesque came to power in 1976 - just as we were digging out of the oil-embargo induced recession of the early 1970s; and Parizeau came into power as the downturn of the early 1990s came to an end. Do the math - poor economic times are when the separatists gain support as people look for alternatives. What does our Prime Minister do? Drive people to them.

Contrary to what many from Alberta seem to think, Canada would be a much poorer place without Quebec as part of it; and I suggest Quebec would not benefit from detachment from the rest of Canada either. (as infuriating as the Quebec separatists can be)