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The other notwithstanding clause

The Ottawa Citizen by Kerri Froc 5 February 2014

It seems obvious that there will be constitutional challenges to Quebec’s proposed Charter of Values, which prohibits “conspicuous” religious symbols for provincial civil servants and contains other requirements purportedly relating to the removal of religion from the provision of government services (and even some non-governmental services, like daycares.)

Usually, the arguments revolve around what seems to be a clear violation of freedom of religion under the Canadian Charter of Rights and Freedoms, provoking in turn further constitutional sabre rattling in other quarters that raises the spectre of Quebec simply invoking Section 33, the “notwithstanding clause.” Quebec has done so before. Supporters of the Charter of Values maintain that the government could use Section 33 to validate the legislation to preserve Quebec’s “secular” society.

What has not been acknowledged, by the Quebec government, its supporters, nor any of the other commentators on the issue is that there is a very obvious block on using this “notwithstanding clause” when it comes to legislation affecting the rights of women. There is, in fact, another “notwithstanding clause.” Section 28 of the Canadian Charter of Rights and Freedoms guarantees all rights and freedoms equally to male and female persons, “notwithstanding anything in this Charter.” In 1981, when the Charter was being negotiated, the feminist drafters of Section 28 successfully beat back an attempt to make it subject to the Section 33 override clause, in a very public battle. There is no question about whether a province could use the Section 33 “notwithstanding clause” to override a court decision invalidating a law on the basis of sex discrimination.

It is clear that it could not.

While the Quebec Charter of Values ostensibly prohibits all “conspicuous” religious symbols, the real target is women wearing the head scarf. This is only reinforced by its other requirement that those who give or receive public services must have their faces uncovered. It is this religious symbol that comes up repeatedly in Quebec governmental discourse and public debate over the Charter. Photographs of niqab-wearing daycare providers holding hands with their charges are some of the latest tools in the propaganda campaign. A Facebook posting depicting the photo brought forward a range of comments such as, “Let’s burn these women and rape them like pigs.” Women’s organizations such as the Régroupement des centres de femmes du Québec reported an increase in physical and verbal attacks against veiled Muslim women since the introduction of the Charter of Values.

These are very personal attacks on these women as women. It therefore defies belief that banning the veil can be justified as promoting gender equality under the auspices of secularism. It will mean that women wearing it could be denied public services and government jobs, pushing them out of the public sphere and causing economic hardship. The reasons for veiling are multi-faceted and complex. But even if one fervently believes that veiling is oppressive, it is difficult to see bans against veiled women obtaining or participating in delivering governmental services as anything other than heaping oppression upon oppression. If the government were serious about gender equality for veiled women, it would focus more on creating the conditions in which autonomy and self-fulfilment can be fully exercised — such as ensuring that they are able to participate fully in educational institutions — rather than attempting to impose freedom. Over the long term, history shows such attempts simply bring resistance and alienation.

The Quebec government’s targeting of veiled women for negative treatment is sex discrimination not only because it adversely affects mainly women because of the visibility of their religious garb, but because it is clearly an attempt to target this group of women based on a paternalistic notion that the state is entitled to tell women what to put on their heads and bodies “for their own good.”

Gender equality under Section 28 was meant to stand as a preeminent and fundamental value under the Canadian Charter. It explicitly applies “notwithstanding” anything else in the Charter. There is therefore, an open question whether Quebec could have recourse even to Section 1 of the Charter, which allows governments to show that rights violations constitute a “reasonable limit” and therefore are constitutional.

A crass political ploy to divide the electorate and consolidate power by running roughshod over women’s rights was exactly the type of power that Section 28 was intended to stop in its tracks. If the courts have the courage to invoke this gender equality section, the Charter of Values will not get far, “notwithstanding” Section 33.

Kerri A. Froc is a Ph.D. Candidate at the Faculty of Law, Queen’s University and a Trudeau and Vanier Scholar.