The Charter can’t save Quebec’s religious minorities. But federal leadership can

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Nothing has changed. There is nothing new or surprising in the story of Fatemeh Anvari, the Quebec elementary school teacher who, for the crime of wearing a hijab, was removed from her classroom earlier this month.

That is precisely the outcome the province’s Bill 21 was intended to achieve: to prevent members of observant religious minorities from working in “positions of authority” in the province’s public sector, even if usually by less visible means – that is, by forbidding them from being hired in the first place.

Neither did the response of federal leaders deviate in the slightest from the posture they have adopted since the law was passed: abject, servile cringing. Conservative Leader Erin O’Toole, while personally “opposed” to it, once again vowed to take no action of any kind to stop it. The NDP Leader, Jagmeet Singh, offered much the same.

And the Prime Minister? As before, he is “not ruling out” intervening in a legal challenge to Bill 21, now working its way through the courts. That, apparently, is the most we can expect of our leaders in the face of the most serious assault on the country’s moral foundations in a generation: something, someday, maybe.

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Let’s be clear. It isn’t the hijab, the turban or the kippa that have been banned: it’s the people who wear them. A policy of what amounts to religious segregation – No Religious Minorities Need Apply – has been imposed across much of the public sector in one of our largest provinces. And the response of most of our leaders is: none of our business.

But it is “our business,” because (to borrow a phrase) Canada is our business. Every citizen of Canada is entitled to equal treatment under the law, no matter which part of the country they live in. That is a matter not only of law, but of justice, and if we fail to uphold either – if we fail to defend the Fatemeh Anvaris among us, when their rights are under attack – then we are as much implicated as those more directly responsible.

But, our leaders protest, they are only trying to avoid making things worse. Anything stronger than their current stance would only “weaponize” the issue, turning it into a federal-provincial fight and inflaming public opinion in Quebec. Besides, what would you have them do? Strike down the law, using the federal power of disallowance? Send in the army?

We have been here before, too. Much the same arguments were heard earlier, in the fights over patriation and the Clarity Act. For decades, patriating the Constitution was held to be impossible, except on Quebec’s terms: if the province did not have an actual veto, it had one as a practical matter. Until patriation was at last effected, over Quebec’s objections. The province’s political class turned purple, but public opinion did not follow where they led: support for secession fell to historic lows.

It was only after the Meech Lake and Charlottetown debacles that separatist sentiment revived, resulting in the near-anarchy of the 1995 referendum: the unilateral declaration of independence the Parizeau government had planned would have tipped the province into a frightening legal void. To prevent a repeat, the Chrétien government first referred the question to the Supreme Court, then passed the Clarity Act. Again they were told by all the wise heads that this would only inflame opinion in Quebec. And again the result was the opposite.

There was never any need to send in the army. A little backbone was enough, appealing to the common sense and common values of Quebeckers. There are measures short of disallowance, likewise, that could be taken (and in any case disallowance is off the table, legally, more than a year having passed since the law was given Royal Assent). If Ottawa is entitled to withhold a portion of fiscal transfers in response to trivial violations of the Canada Health Act, it can surely think of some appropriate penalty for gross offences against human rights.

Unthinkable! Outrageous! The nuclear option! But the nuclear button has already been pressed: by invoking the notwithstanding clause, the province has shielded the law from most judicial scrutiny – as it has done with Bill 96, and as it threatens to do on other occasions. Our leaders no longer have the luxury of leaving these things to the courts to sort out: the Charter is fast becoming a dead letter in the province. As, it would seem, is much of the Constitution: the province that asserts the power to amend the Constitutional unilaterally, or to apply provincial law to federally regulated companies, is in no position to get all shirty about the division of powers.

We would appear to be left with two options. We can collaborate in the persecution of religious minorities in Quebec. Or we can summon our nerve, face up to the necessity of confrontation, and do what it takes to stop it.

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