In fact, the state has presented the exact opposite evidence by recognizing that wearing a small visible Christian cross does not affect the capacity of the state employee to appear and remain neutral. Also, by covering all state personnel – whether or not they represent state authority – the measure is not sufficiently tailored to minimally impair the constitutional rights in question.
Unless the notwithstanding clause of s. 33 were used to shield the proposal from Charter challenges, it would be unconstitutional. Moreover, s. 33 could not protect against the unconstitutional violation of the principle of judicial independence that would result from the submission of provincial judges to the proposal and to the attendant risk of dismissal in case of non-compliance.
Hugo Cyr is a professor of public law at the University of Quebec at Montreal.
Sylvain Lussier – No, Quebec’s justification isn’t ‘pressing’
Neutrality of the state is not a problem even if, oddly enough, our Constitution recognizes “the supremacy of God” even before that of the “rule of law.” It cannot be doubted that the state of Quebec has been neutral since the Révolution tranquille of the 1960s. But it is from the Catholic Church that it emancipated itself. No one would believe that it needs to complete its separation from the church, although it may be questioned why the government insists on maintaining the crucifix, hung up by the Duplessis regime in 1936 in the National Assembly.
The “ostentatious religious signs” that are to be banned in the public service are hardly those of Catholics. The effects of the proposed measures are discriminatory, affecting Muslims, Jews and Sikhs. Notwithstanding the reiteration of the equality of men and women in the proposed charte des valeurs, these measures could in addition discriminate between men and women (the beard and the veil, or the wig and the kippa).
Justification requires a “pressing and substantial objective” (Oakes, Supreme Court of Canada, 1986). “Pressing” imports a sense of urgency that is absent from the demonstrations given to date by the government. One equally fails to detect the “substantial” need to address.
The justification of the restriction in a “free and democratic society” cannot rely solely on European precedents. It has to be contextualized in the Canadian and even North American environment, with its unique tolerance of religious diversity, the foundation of Canada and the United States.
Sylvain Lussier is a barrister appearing before the courts of the province of Quebec and before the Federal and Supreme courts of Canada. He represented Canada before the Gomery Commission.
Jamie Cameron – No, the breach of rights is flagrant
At best, Quebec’s values charter suffers from incurable design flaws. Creating a secular state requires religion to be invisible or almost invisible, but how that is done matters. To start, what counts as overt and conspicuous and which symbols are religious remain uncertain. More problematic are exemptions for some employees in some institutions, but not others, and for elected officials who are among the most visible representatives of the state. Most telling of all are heritage exceptions for the public and highly conspicuous symbols of a religious past – the crucifixes and pervasively sainted towns, streets and landmarks that name the province of Quebec.
The design is incoherent and unconstitutional on that ground alone. Dangerously, the values charter privileges the artifacts of Quebec’s Christian and Catholic heritage at the expense of the visible symbols of Quebec’s religious demographic today. It is difficult to imagine what neutral secularism would look like in the face of history’s embedded religiosity. Yet banning some religious symbols from the public sphere but saving others is nativism, and using the law to ban symbols of faith is an insidious form of statism.
Make no mistake: The values charter strikes at the core of fundamental freedoms that belong to all Canadians – freedom of religion, but also freedom of expression and association. This flagrant breach of constitutional rights could only be saved by the override, and overriding the Canadian Charter would confirm that intolerance, not neutrality, is the values charter’s truth.
Jamie Cameron of Osgoode Hall Law School is a constitutional law scholar.
Nathalie Des Rosiers – No, with one exception about exceptions