Sean Fine, The Globe and Mail’s justice writer, asked nine distinguished lawyers to form an expert panel and give their opinions on the constitutionality of Quebec’s proposed prohibitions on religious clothing and symbols in public-sector workplaces. The panel was chosen for regional balance – to reflect the composition of the Supreme Court of Canada, including three members from Quebec. Two advocates from Quebec – law professor and former Bloc Québécois MP and Parti Québécois MNA Daniel Turp and human-rights lawyer Julius Grey – presented the arguments, for and against, and their arguments were distributed to the panel. The panel, drawn mostly from law schools across Canada, was resoundingly opposed to the new ‘charter of values’ by a count of 9-0 – though with an asterisk on one of the nine.
Is the proposal to prohibit the wearing of conspicuous religious symbols by state personnel in carrying out their duties for the purpose of reflecting state neutrality consistent with the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms?
Daniel Turp – Yes, it is constitutional
The proposal is consistent with the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.
Both charters provide that the fundamental freedom of religion can be subject to limitations. Section 1 of the Canadian Charter provides that it can be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In an analogous manner, article 9.1 of the Quebec Charter states that “in 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” and adds that “in this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.”
The measures relating to the prohibitions have been carefully designed to achieve the objective of organizing the state around the principle of secularism and, more specifically, to outline the principles of religious neutrality, separation of religion and state and the secular nature of its institutions, as well as to clarify how these principles are embodied. Accordingly, the measures are not to be arbitrary, unfair or based on irrational considerations, notably as they apply to all religions. To quote the European Court of Human Rights (ECHR) in the Sahin case, it is legitimate to “impose limitations … in order to reconcile the interests of various groups and ensure the respect for the convictions of each” and focus “on the role of the state as a neutral and impartial organizer of the exercise of various religions, faiths and beliefs, religious harmony and tolerance in a democratic society.”
The means referred to in the proposal impair as little as possible the fundamental freedom of religion inasmuch as they apply only to state personnel in carrying out their duties and the wearing of “conspicuous” religious symbols. Discreet religious symbols would not be affected by this proposal. As the measures are adopted in accordance with a sufficiently important objective, their effects should be deemed proportional.
It should be accepted that when questions “arise about the relationship between the state and religion, issues on which differences can reasonably exist in a democratic society, it is necessary to pay particular attention to the role of the national decision” (ECHR, Sahin case). In light of the adoption by the House of Commons of Canada in 2006 of a motion recognizing that Quebec forms a “nation,” such a national decision belongs to Quebec’s National Assembly. Thus a margin of appreciation should be provided to Quebec in these matters.
Daniel Turp is a professor of constitutional and international law in the Faculty of Law, Université de Montréal.
Julius Grey – No, it’s not constitutional
The charter of Quebec values is unconstitutional unless the Supreme Court decides to reverse its consistent jurisprudence – Multani (kirpan), Amselem (Sukkah) and Bergevin (Jewish holidays). Certainly the Supreme Court could change its mind. However, there is a presumption that recent jurisprudence will be followed. The proclamation of state secularism would remain but not all of the new prohibitions.
The jurisprudence is to the effect that if accommodation can be made without excessive cost or injustice, it should be. Unreasonable accommodation is already denied and no new charter is needed to establish this. For instance, a photograph was required for a driver’s licence despite religious objections.