BENJAMIN BERGER

Quebec doesn’t need a new Charter. It got a perfectly good one in 1975

Contributed to The Globe and Mail

Benjamin Berger

(Osgoode Hall Law School - York University)

Employment Minister Jason Kenney’s characterization of the proposed Charter of Quebec Values as “Monty Python-esque” was more perceptive than he probably imagined. Faced with this proposal, one is reminded of the scene in Monty Python and the Holy Grail in which King Arthur and his knights encounter a group of French soldiers occupying a castle. King Arthur extends an invitation for their leader to join the quest for the holy grail, but one soldier responds: “Well, I’ll ask him but I don’t think he’ll be very keen. He’s already got one, you see.”

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A Charter of Quebec Values? Quebec’s already got one. The Charter of Human Rights and Freedoms is likely the most progressive rights-protecting document in Canada. Passed by the National Assembly in 1975, it not only predates the Canadian Charter, but offers a more ambitious vision of the rights and duties that contribute to a good and just society. Binding individuals and the Quebec government alike, it includes a number of protections and duties not found in the Canadian Charter or other human rights instruments, including a set of social and economic rights, such as a right to education and to a “healthful environment.” Its equality guarantee is admirably robust, prohibiting discrimination, exclusion or preference on a host of grounds, including sex, sexual orientation, and religion. Since 1982 it has also stated that “[i]n exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.”

When the Quebec government cloaks this latest proposal in the need for a statement of the fundamental values that define Quebec as a free and open society, it marginalizes the Charter of Human Rights and Freedoms and its status as Quebec’s democratic expression of just those values. Moreover, those values – a strong commitment to the dignity and freedom of others, to the principle of equality, and an overarching regard for the public good – are essential features of the best understandings of “secularism.”

Premier Pauline Marois and her government justify the new Charter, including its ban on “conspicuous religious symbols,” as necessary in the name of the religious neutrality of the state. Yet this proposed ban disregards the substance of neutrality in favour of a fetishistic focus on symbols and clothing, leading instead to the antithesis of neutrality – rank discrimination. Consider two hypothetical government employees. The first is a Muslim woman who wears a hijab and is committed to fairness, even-handedness, and the rule of law in the execution of all of her duties. The second is a Roman Catholic man who sees his role as ultimately determined by his theological commitments. The proposed ban would preclude the first person from working in government; it would say nothing about the second. Genuine concern for neutrality must look at the substance of how individuals make their decisions, and the way in which they treat other people. There is no shortcut or substitute. A ban on “conspicuous religious symbols” reliably distinguishes only between religions that involve outward manifestations and those that do not. That is precisely the kind of discrimination that the National Assembly stood against in 1975.

The final irony is that the Parti Québécois’ proposed approach actually requires the state to make complicated theological and religious claims, interpreting the meaning of the crucifix in the National Assembly (Jesus dying on the Cross is not religion, but “heritage”) and of kippot, turbans, and hijabs (including their implications for a commitment to equality) – a point that has been made about similar proposals elsewhere in the world.

What, then, are we to make of the Charter of Quebec Values? It is difficult to see the proposed Charter as anything other than a cynical use of a complex policy question for political ends. There are a host of legal arguments available to those who oppose this legislation. The most principled objections, however, are based in the idea of neutrality itself, and in the values to which Quebec society has already committed itself.

Benjamin L. Berger is an Associate Professor at Osgoode Hall Law School in Toronto.

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