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The Quebec flag is pictured at the Quebec National Assembly in July, 2013. (Clement Allard/The Canadian Press)
The Quebec flag is pictured at the Quebec National Assembly in July, 2013. (Clement Allard/The Canadian Press)

Is Quebec’s secular charter constitutional? Nine legal experts weigh in Add to ...

While the National Assembly could try to define some “excessive” demands, such as a complete face-covering, it would be difficult to justify the proposed elaborate limitation of accommodation based on the size and type of religious object. The problem is both freedom of religion and equality.

A justification under section 1 of the Canadian Charter of Rights and Freedoms would be especially difficult to make because the charter of Quebec values limits access to employment. The jobs affected are often ones to which immigrants gravitate – police services, the health sector and education. Moreover, recent statistics show that immigrant families fare less well in Quebec than others. There is clearly a discriminatory effect.

At present, the result would be the same under the Quebec charter as under the Canadian Charter. It is true that Quebec could amend its Charter of Human Rights and Freedoms to comply with its new vision. However, the Canadian Charter would remain, and since Quebec has already promised not to invoke the notwithstanding clause, it would receive its full application.

Other difficulties abound. Quebec proclaims gender equality as a predominant “value.” It is indeed very important, but does it necessarily carry more weight than racial equality? In any event, the Supreme Court said in Dagenais that one does not rank basic rights, but rather one tries to reconcile them if they conflict. That would continue to be so because of the Canadian Charter.

On the issue of religion, Quebec forgets the use of the word “conscience” in the Charter. Amselem shows that the Charter does not protect the dogmas of any religion, but rather the conscience of each believer or non-believer. The new approach would force a choice between conscience and employment, and that is surely not compatible with Canadian and Quebec tradition.

Julius Grey is a human-rights lawyer who lives in Montreal.

THE PANEL

Shauna Van Praagh – No, it goes against both charters of rights

Just last week, first-year law students started their formal legal education, eager to learn about individual rights and obligations, institutional structures and capacities and constitutional pillars and promises.

Could a hypothetical law forbidding state employees from wearing “ostentatious” signs of religious identity withstand the scrutiny of the Canadian Charter of Rights and Freedoms? Students would quickly point out that such a rule clearly infringes upon fundamental human rights to expression, association and belief – and that it’s hard to see how such a prohibition is carefully tailored to meet the objective of ensuring fair treatment in education, health care or social services. Their assessment – even before studying constitutional jurisprudence – would be exactly right.

But constitutional invalidity is the easy part. Law students should also learn that Quebec law with respect to how people treat each other is shaped by the Quebec Charter of Human Rights and Freedoms. Each of us must act in a way respectful of each other’s rights – and must repair any harm caused by our failure to do so. Nothing need be added to that charter to ensure appropriate behaviour by, or interactions with, individuals of faith. Further, law professors should invite students to compare legal frameworks of democratic mixed societies, look to international norms for guidance and find evidence from other disciplines that children and adults can embrace, rather than fear, diversity.

It’s a good lesson in all aspects of law, and a reminder of the many ways we can participate in creative, constructive critique and conversation.

Shauna Van Praagh is a law professor at McGill University.

Hugo Cyr – No, Quebec hasn’t proved its case

No one has a constitutional right to a specific job. Nonetheless, the state does not have an absolute right to decide whom to hire; it cannot use employment criteria that violate the Canadian Charter of Rights and Freedoms.

By forcing state personnel to choose between their employment and their own sincere religious convictions, the proposal would impose an exceptionally heavy burden on members of certain religious minorities. The proposal would thus infringe upon the freedom of conscience and religion and the right to equal benefit of the law without discrimination.

Ensuring state neutrality in relation to religious views may be a “pressing and substantial” state objective. However, the Quebec government has not shown a rational connection between that objective and the challenged proposal. No evidence has been presented to demonstrate a connection between the capacity of state personnel to be (and appear) religiously neutral in the fulfilment of their employment duties and the way they dress.

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