In recent years, the Supreme Court has had to deal with a number of complex constitutional issues implicating “reasonable accommodation,” and in each case it has placed a serious onus on governments to justify limits on religious freedom. Should Muslim women testifying in court be compelled to remove their niqab (face veil)? Should those whose religious beliefs prevent them from having their photo taken be granted government-issued ID without that requirement? Should Sikh children be allowed to bring their kirpan (sheathed, blunted ceremonial dagger) to school?
Compared to these cases, the proposed Charter of Quebec Values – which would prohibit public-sector employees from wearing “overt” religious symbols or clothing – should present courts with little difficulty.
Unlike the cases above, the Parti Quebecois government’s objective here does not address a substantial problem. Compelling women to remove their niqab when testifying is premised on the belief that judges or juries can better assess their honesty and that criminal defendants have a countervailing right to face their accusers. Requiring photo ID for things like drivers’ licenses ensures police on the ground can properly identify drivers when needed. Preventing children from bringing kirpans to schools has safety implications. None of these justifications necessarily provide a sufficient basis for infringing religious freedom, but they are all at least plausible and substantive objectives.
By contrast, the PQ argues that preventing public servants from exercising religious freedom at work is part of a broader secularism or “state neutrality” with respect to the state’s role vis-a-vis religion. This is a perversion of the principle of the separation of church and state, which is normally regarded as preventing government from imposing particular religious doctrines on citizens (such as requiring children to say the Lord’s Prayer at school). Instead, the PQ government proposes to strip citizens of any overt religious identification when working in the public sector. That is a far cry from a “neutral” state objective.
As an entirely symbolic enterprise, the legislation should fail on the first step of the judicial test for determining whether an infringement of the Charter of Rights and Freedoms is “reasonable in a democratic society,” which states that the government requires a substantial and pressing objective when it seeks to limit a right. In a case on prisoner voting rights, the Supreme Court majority made it clear that objectives which are symbolic in nature are “problematic” and noted that a legislature “cannot use lofty objectives to shield legislation from Charter scrutiny.”
More significant is the fact that the proposed law is grossly discriminatory. Quebec commentators may be correct in arguing that the PQ is not racist, but the fact remains that the government is advancing a fundamentally bigoted law. With its focus on “overt” religious symbolism – while permitting smaller items such as the wearing of a modest-sized cross – the Charter of Quebec Values essentially targets religious groups that tend to be comprised of visible minorities, such as Sikhs and Muslims.
This is the definition of systemic racism. And the impact of this discriminatory law would force some Muslims, Sikhs and others to choose between their deeply-held personal beliefs and their jobs – jobs, we should be clear, whose performance is not at all affected by the wearing of a turban or headscarf. (Some have suggested that certain practices, such as the wearing of the headscarf, are “cultural, not religious” and not deserving of constitutional protection. As a matter of constitutional law, this is incorrect: courts avoid determining whether a particular religious practice is legitimate, it need only be honestly held as a religious belief).
There is a chance that the Charter of Quebec Values will not pass muster with the legislature, particularly given that the PQ is a minority government. If it does pass, however, there may ultimately be little the courts can do. The PQ apparently plans to amend the Quebec Charter of Human Rights and Freedoms to include a provision for “secularism.” With respect to the Canadian Charter of Rights, the government is free to invoke the “notwithstanding clause” to immunize the law from judicial review (which it could do before or after a court ruling). If it does both of those things, the law would stand.
The PQ would no doubt be thrilled to exploit any uproar that results from the Quebec National Assembly “overruling” a Supreme Court decision that strikes down the Charter of Quebec Values as unconstitutional. It would sell such outrage as yet more evidence of Quebec’s distinctiveness, and a Court ruling as an Anglo-Canadian, federal institution attempting quash it. In that vein, it may be best to regard this not as a matter of constitutional law (although the proposed law would clearly violate it) but as a dangerous, divisive game played by Pauline Marois and her government to seek discord between Quebec and the rest of Canada.
It is no small irony, then, that for the proposed law to stand the PQ would likely need to amend the Quebec Charter of Human Rights, for it is a document that expresses remarkably similar values and principles to Canada’s own Charter. Contrary to what the PQ would have us believe, this is not an example of the “two solitudes” and vastly different values. It is an expression of xenophobia; an act sought not by a province of people, who hardly regard this as an important priority, but by a petty government that has no substantive agenda other than division.
Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role was published this year by UBC Press. He is on Twitter @EmmMacfarlane.
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