The federal government has named a Montreal lawyer as a judge to Quebec Superior Court about a year after he made headlines during a legal challenge to Quebec’s controversial Bill 21 legislation, which bars public-sector workers from wearing religious symbols in the name of protecting secularism.
In 2020, Azimuddin Hussain represented the Coalition Inclusion Quebec before Quebec Superior Court when he brought up many historic examples of discriminatory laws in Canada and abroad. He intended to show that by allowing a type of discrimination protected by the Canadian Constitution’s notwithstanding clause, the courts would let Bill 21 open the door to even worse cases of discrimination.
Supporters of Bill 21 criticized Hussain when he cited antisemitic laws — nicknamed Nuremberg laws — under Nazi Germany as he made his arguments.
A controversial analogy
In a series of exchanges in court last year, Hussain and Justice Marc-André Blanchard touched on the discriminatory treatment of Japanese Canadians during the Second World War.
During the discussion, Hussain also spoke of the antisemitic legislation adopted by Nazis in 1935. Hussain never compared it directly or indirectly to Bill 21, but he used the example to illustrate how a law could eventually lead to worse discrimination.
Hussain’s comments at the time raised a lot of eyebrows. “Bill 21: a lawyer makes a link to Nazis,” read one headline in the French-language daily Le Journal de Montréal. Yves Boisvert, columnist at another French-language newspaper, La Presse, defended Hussain, stating he had not made any links between the Nuremberg laws and the Quebec legislation.
During an appearance on the French-language talk show Tout Le Monde en Parle, essayist and columnist Mathieu Bock-Côté did not name Hussain but said he had “associated Bill 21 to Nazism.”
The next morning, Hussain clarified his comments in court, stating he had brought up the Nazi Germany question to limit the use of the notwithstanding clause by a legislative body. He said his objective was to denounce the fact that a lack of limits on the use of notwithstanding clauses by governments means there is no constitutional protection for minorities.
“I did not, and I never would, suggest the social, economic or historical context of those laws and today’s context are the same,” he said.
Hussain had raised a hypothetical question as well: what would happen if Bill 21 forced people of colour to sit in the back of a bus.
He said he had done that in order to see if the notwithstanding clause could protect a “heinous” violation of human rights.
Hussain’s legal challenge largely failed, as Justice Blanchard upheld the law almost in its entirety. The case will head to the Quebec Court of Appeal before likely ending up at the Supreme Court of Canada.
Legault vs. Trudeau
Hussain’s nomination to Superior Court clearly demonstrates the political differences between Ottawa and the Quebec provincial government on Bill 21.
While Quebec Premier François Legault’s administration vigorously defends the law both publicly and in court, Prime Minister Justin Trudeau’s government attacks it and maintains it might intervene at the Supreme Court of Canada.
Hussain’s intervention before the courts was certainly considered by the federal government while it vetted his candidacy for the bench.
The case of a teacher in Chelsea, Que., who recently lost her position because she wears a hijab has captured Canadian attention and relaunched the political debate surrounding the law.
“I profoundly disagree with Bill 21,” Trudeau said on Dec. 13. “In a free and open society, I don’t think that someone should lose their job because of their religion.”
During an interview on French-language political talk show 24/60, Simon Jolin-Barrette, Quebec’s minister responsible for laicity, said Trudeau should instead mind his business.