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Jamie Sarkonak: The activists clamouring for us to be ruled by a woke juristocracy

Interest groups have been asking the Supreme Court to consider race, international law in notwithstanding clause case

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The Supreme Court held hearings last week regarding Bill 21 — Quebec’s secularism law, which prohibits religious dress and symbols from the province’s public-sector workplaces. The ban flouts the Charter of Rights and Freedoms, but Quebec, so far, has gotten around that by invoking Section 33, the constitutional override known as the notwithstanding clause.

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Section 33 was Quebec’s last secure line of defence against cultural annihilation. Indeed, it’s a release valve for any province where the morality of the courts has become detached from that of the people. If you take it away, judges become the highest authority in Canada — which is why legal activists intervening in the case have been trying to convince the Supreme Court to do that all week.

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In its submissions, the Ontario Human Rights Commission said that Section 33 should not be invoked in a way that “fundamentally undermines the multicultural heritage of Canadians,” which, effectively, would prevent any province from asserting its own identity.

The Public Interest Litigation Institute, in conjunction with an omnicause activist, argued that Section 33 can only be invoked in response to court judgments with which a legislature disagrees.

The Canadian Labour Congress took that same position — and ended on an even more radical argument: that a legislature’s decision to invoke Section 33 must have a “rational basis” and should be reviewable by the courts, and should not stand where the court finds a “bad faith or animus towards a particular group.”

This would defang the notwithstanding clause, potentially allowing judges to bar its use whenever they felt a government didn’t justify their choices with enough evidence. Remember when Ontario Superior Court Justice Paul Schabas ruled that removing bike lanes from a road without evidence was a violation of cyclists’ Charter rights? You could expect the same logic to stand in the way of any provincial government that doesn’t adopt the progressive politics now held by most judges in the country.

The South Asian Legal Clinics of B.C. and Ontario, joint with the South Asian Women’s Community Centre, told the Supreme Court that the use of the notwithstanding clause should have to follow international law — such as the prohibition on racial discrimination. This should even include “laws with discriminatory effects of which the state was aware before enacting them but did nothing to address,” they argued.

This would apply to practically every law on the books, because just about every rule in existence affects different racial groups to different degrees. Chinese and Indian taxpayers are some of the highest earners in Canada, for example, and are thus most affected by taxation. Asylum seekers are largely non-white, and thus, any benefit for Canadians that isn’t offered to asylum seekers ends up having a discriminatory effect.

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Submissions by the Raoul Wallenberg Centre for Human Rights encouraged the court to subject the notwithstanding clause to international law — another direct request that the court undermine the sovereignty of the country. We could see courts barring democratic legislatures that don’t totally submit to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) for Charter challenges involving Indigenous individuals, and whatever else comes down the pipe.

Considering how the UN is now talking about ordering western countries to pay reparations for slavery to Africa (but of course not the African and Arab nations that also participated in slave trading), this could go very poorly for us. If some enterprising Black advocacy group used the Charter to try to extract benefits from the state on the grounds that a few slaves existed in Canada in the 18th century, and if a court was sympathetic, the public could find itself without the tool to say “no.”

Meanwhile, the Women’s Legal Education and Action Fund (LEAF) argued for a complete Section 33 bypass. The notwithstanding clause, you see, can be used to “override” rights that are set out in Section 15 of the Charter: race, sex, gender, religion, etc. But it cannot be used to override Section 28, which, confusingly, also protects gender equality. Because Bill 21 disproportionately affects women — not all women, but Muslim women — it should be struck down because it violates Section 28.

LEAF was making an argument about intersectionality: any gender protection should apply not just to preserving the balance between men and women, but specific racial and religious subgroups, as well as those who identify as transgender and non-binary. This would be the end of Alberta’s sex-based protections for female sport and female-only spaces, because laws that preserve these discriminate against other gender identities, particularly men who identify as women. LEAF also said that Section 28 should guarantee what’s called substantive equality — that is, equal outcomes between groups.

As an example of this, the Barbra Schlifer Commemorative Clinic, a legal service for minority women, and a group called Women in Canadian Criminal Defence pointed to niqab- and hijab-wearing Muslim lawyers: Bill 21 would infringe on their equality by barring them from working in legal aid. That violation would trickle down to their clients, who might be “women who face intersectional and systemic barriers,” and would be disproportionately harmed by not being able to use their services.

It’s a very bad sign that the Supreme Court decided to run a legal appeal like a committee in the House of Commons, giving the illusion of fairness when it was really anything but. This could be the case that ends parliamentary supremacy — the thing that makes Canada a democratic country — and it’s been spammed by interest groups snapping like piranhas for even more race-based law.

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