Quebec, religious symbols and the Canadian Charter of Rights and Freedoms

One of our rare excursions outside Europe…

Quebec’s proposed restriction on displaying religious symbols

The Government of Quebec, a minority administration led by the Parti Québécois, is currently drafting a “Charter of Quebec values”.  A draft version leaked to Le Journal de Montréal last week included a proposal to restrict the wearing of “religious symbols” “ostentatiously” in publicly-funded settings; and media reports suggest that it will prohibit public employees from wearing Sikh, Jewish and Muslim headgear or visible crucifixes at work. (At this point, sharp-eyed readers may have spotted some similarity to the French ban on religious symbols in schools – the Loi n° 2004-228 du 15 mars 2004 – about which, coincidentally, we posted last week.) Concern has already been expressed that if the Government insists on the ban, Quebec’s hospitals could haemorrhage staff as doctors and nurses who wear turbans and hijabs simply vote with their feet.

The Premier of Quebec, Pauline Marois, has said that the Charter will affirm, once and for all, equality between men and women and will reflect not only “universal” values but Quebec values as well:

“We’re moving forward in the name of all the women, all the men, who chose Quebec for our culture, for our freedom, and for our diversity”.

(Oddly enough, religious dress had already been in the Canadian news as a result of a recent ban on turbans by the Quebec Soccer Federation which was only lifted after the Quebec Federation was suspended by the Canadian Federation for non-compliance with FIFA rules. Ms Marois defended the local Federation and accused its detractors of Quebec-bashing.)

Writing in The Globe & Mail, Ian H Henderson, of the Faculty of Religious Studies at McGill, rang alarm-bells about a proposal that he felt was both vague and undesirable:

“The only thing worse than a blanket attack on the expression of religious identity would be a ‘moderate’ attack that secured democratic support by focusing on unpopular religious identity-markers (the burka, for example)”.

He suggested that part of the impetus for the proposal was that, for many Québécois of the generation of Pauline Marois, an important marker of identity is emphatically not practising Roman Catholicism in particular and a general rejection of anything recalling pre-1960 Quebec Catholicism. Moreover, he suggested that

“If there is any concept less clear than ‘Quebec values’, it must surely be ‘religious symbols’. What is a religious symbol and who gets to decide, once wearing them in the public sector has been made illegal? If two women wear identical headscarves, is only the Muslim woman wearing an offensive religious symbol?”

No doubt he, too, has seen pictures of the Queen of Canada wearing a headscarf.

Charles Taylor, the eminent philosopher, Templeton laureate and Co-Chair of Quebec’s 2007 consultation on accommodating cultural differences which produced Building The Future: A Time for Reconciliation, was highly critical of the proposal on the grounds that it would damage Quebec’s international reputation and debar entire communities from public-sector jobs because of their religious convictions. He argued that it was one thing to ban a teacher from wearing a burqa because of the impediment to clear face-to-face communication, but quite another to impose a blanket ban.

Justin Trudeau, Federal Leader of the Liberal Party, was the first prominent national politician to oppose the ban, soon to be joined by the Federal Multiculturalism Minister, Jason Kenney, who tweeted:

“Freedom of religion is a universal principle. A child is no less Canadian because she or he wears a kippa, turban, cross, or hijab to school. Kids have always worn religious symbols in Canadian classrooms, w/out jeopardizing social cohesion. So why is this suddenly a divisive issue?”

The Canadian Charter of Rights and Freedoms

In any event, would such a ban survive a challenge in the courts? Certainly the Canadian Civil Liberties Association thinks not. Said a spokeswoman, Cara Zwibel:

“On its face, the idea that the government tells individuals that they can’t express their religious beliefs, that they can’t wear religious attire, is … a violation of freedom of religion, which is protected by the Canadian Charter of Rights and Freedoms. And we also need to ask whether we want government to be responsible for deciding what’s a religious symbol and what’s a cultural symbol, what’s an expression of our cultural backgrounds and beliefs”.

Canada’s Constitution Act 1982, the terms of which were set out in Schedule B to the Canada Act 1982 passed by the UK Parliament, begins with the Charter. It includes the following:

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication (c) freedom of peaceful assembly; and (d) freedom of association …

Equality before and under law and equal protection and benefit of law

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Quebec’s proposed ban would appear to engage aspects of two of the fundamental freedoms: freedom of religion and freedom of expression. It is also difficult to see how a ban on religious symbols would contribute to “the amelioration of conditions of disadvantaged individuals or groups”. Moreover, the Charter is federal law, standing in the same relation to provincial law as does the ECHR to national law in Council of Europe member states. Provincial legislators cannot override federal law; and in the event of a challenge the first question before the court would presumably be whether such a ban could be “justified in a free and democratic society” under s 1 of the Constitution Act.

Comment

Perhaps the Government of Quebec will reconsider its proposal – or perhaps its plan is to force a showdown with the federal courts and the Canadian Government in the hope of strengthening its case for an independent Quebec. Not for the first time, we must wait and see.

4 thoughts on “Quebec, religious symbols and the Canadian Charter of Rights and Freedoms

  1. Dear Sir,

    Your assesment is by and large correct. I just want to add that the Canadian Charter of Rights and Freedoms, which is the constitutional instrument against which the “Charter of Quebec values” would possibly run, contains an override clause (s. 33’s “notwithstanding clause”) which allows a legislative assembly, be it federal or provincial, to shield potential violations of some Charter rights (including fundamental freedoms such as freedom of religion and equality rights) from constitutional review by law courts. Such a clause, when inserted into an otherwise potentially unconstitutional statute, bears effect for five years and is renewable. This clause has rarely been used, and governments often tend not to use it for fear of public uproar. However, the current PQ government, with its national-secessionist ideology, may very well decide to use this legal mechanism given what seems to be the support of a majority of French-speaking Quebeckers for the “Charter of Quebec values”, at least according to recent polls. Or the government may instead prefer, as you allude to, a direct confrontation with the Canadian constitutional framework and use a potential declaration of unconstitutionality by the Supreme Court as an argument in favour of secession. A lost legal battle could thus become a political win. It remains to be hoped, perhaps unrealistically, that the so-called “Charter” is no more than a trial balloon and that the Quebec government – theoretically led by a leftist party – will refrain from adopting measures that are very close to those advocated by France’s Front national.

  2. Thank you very much for the clarification – especially on the operation of s 33. I think that I should let my text stand as it is, warts and all: but, on reflection, I should have either omitted the words “Provincial legislators cannot override federal law” or attempted to explain the s 33 mechanism.

  3. The International Center for Law & Religion Studies at Brigham Young has posted a helpful page of links to recent comment on religion and the Charter of Rights and Freedoms, here.

  4. What is it with the politicians in Quebec? Can’t do enough to stifle people’s rights … why do they keep electing these people that have the mentality of Hitler?

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