By Chidimma Aliozor
The Canadian Charter of Rights and Freedoms is an excellent document, truly. From the time it was passed as part of the Constitution Act of 1982, it has been crucial in protecting vulnerable people from oppressive laws and governments. However, there is one tiny facet of the Charter that undermines its whole purpose: that is, the notwithstanding clause.
Section 33 of the Charter, the notwithstanding clause, allows governments to create laws that violate the rights contained in sections 2 and/or sections 7-15, as long as they invoke section 33 in the legislation. Included in section 2 are the fundamental freedoms--think freedom of expression or freedom of religion--whilst sections 7-15 contain legal and equality rights.
When CUPE education workers declared their intention to strike because of unfair pay, the Ford government passed Bill 28 which made the strike illegal by invoking the notwithstanding clause. The government cited the importance of keeping kids in schools after a tumultuous few years, yet they initially weren’t too determined to come to a proper agreement with the education support workers, who’ve helped support children before, during, and after the pandemic. Ironic, isn’t it?
Bill 28 would impose a contract on CUPE education workers, in which their wage increases would be limited to 2.5%--this rate was still about 5% below inflation. The bill would also fine unions and individuals who participated in the strike upwards of $4000 a day. Despite the passing of the bill, CUPE went on strike anyway.
The next four days were remarkable: CUPE workers took to the picket lines even in the face of astonishingly high fines, NDP politicians were kicked out of Queen’s Park for speaking out against Bill 28, and other unions started discussing plans for a general strike in protest of the legislation. In the face of all these pressures, it didn’t take long for the Ontario government to fold; they agreed to repeal the bill if CUPE was willing to come back to the bargaining table.
Fortunately, CUPE was eventually able to negotiate a deal with the government. However, the fact that the government would even take such measures is insulting. That it is constitutionally permissible is an affront to our democracy. If some of our most significant rights can be overridden at the drop of a hat, then truly, what is the point of the Charter?
In Quebec’s infamous Bill 21, public sector workers are prohibited from wearing religious symbols while they are on the job. This legislation, of course, was enacted through the use of the notwithstanding clause--otherwise, it would have been a blatant breach of freedom of religion. Well, it certainly still is a violation of freedom of religion, it simply wasn’t in the eyes of constitutional law. Which is crazy, given the discriminatory nature of the law.
Bill 21 makes the assumption that religious symbols are easy for individuals to just leave at home before the beginning of the workday; while many Christian denominations do not have mandatory garments--though some may choose to wear a crucifix, it can easily be removed or tucked behind clothes without consequence--believers of religions like Islam or Sikhism are often required to wear an overt sign of their religious affiliation. For instance, Muslim women who choose to wear the hijab or Sikh men who wear a turban cannot simply take off either garment before going to work. Yet, under this law, they would be expected to if they were hired as a teacher, for example. Like in the case of Fatemeh Anvari. Anvari is a hijabi woman who, on account of her hijab, was reassigned from her position as a teacher in an elementary school to a role in “inclusion and diversity literacy” within the school.
Anvari did not preach her religious beliefs to her student. Her teachings were not about Islam, nor did anything about her behaviour imply that she was a terrorist or some sort of harmful influence on children. However, simply because she wore the hijab, she was removed from the classroom. In contrast, Vincent Ouellette, a teacher who is completely acceptable under Bill 21, can spew racist and Islamophobic rhetoric for over a decade without consequence. It wasn’t until he went viral that he finally lost his job. How is it fair that unoffending people like Anvari can more easily lose their job than a serial racist like Ouelette?
It is no surprise that Muslim women are the most affected by Bill 21, as evidenced by a recent study led by Miriam Taylor, director of publications and partnerships at the Association for Canadian Studies. The study revealed that 78% of Muslim women feel less confident about being accepted as a member of Quebec society than they had before the passing of the bill. Although the bill’s jurisdiction was only workers in the public sector, its reach is clearly far greater than that. It has only worsened the Islamophobic attitudes in the public and further alienated Muslim women, all in the name of secularism.
This is the outcome of a bill that enacts the notwithstanding clause. The Charter’s true purpose is to protect minorities from the tyranny of the majority; what is the notwithstanding clause if not a way to enable the majority’s tyranny?
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