Law professors weigh in on comparing Quebec’s values charter to Bill 101

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Three weeks ago, as her government began leaking elements of its proposed charter of values, Premier Pauline Marois signalled what would be the key sales pitch: comparing the new plan to Bill 101, the landmark Quebec language legislation.

"The charter will become, I am certain, a strong unifying element for Quebeckers, the way it was for Bill 101, which united rather than divided us," Ms. Marois said at a Parti Québécois conference.

Having unveiled its proposal, which would ban public workers from conspicuous religious garb, the government alluded again to Bill 101, which faced a storm of criticism when it was tabled in 1977 but is now treasured by most Quebeckers.

The PQ even launched on its party website an online quiz called Charte vs Charte, which compares criticisms of Bill 101 in 1977 and the negative feedback triggered so far by the latest proposal.

With one exception, several law professors are however dubious about comparing the current charter of values to Bill 101, formally known as the Charter of the French Language.

THE URGENCY IS NOT THE SAME

Under the Canadian Charter of Rights, the state can limit individual rights if it can show a "demonstrably justified" reason for the infringement.

Camille Laurin, the father of Bill 101, tabled the legislation at a time when there were concerns that the French language was under threat in Quebec and that immigrants were assimilating en masse into the anglophone community "There were tonnes of demographic data that showed the attrition of the French community," recalled Denise Réaume, a professor at the faculty of law of the University of Toronto.

While some parts of Bill 101, such as the total ban on bilingual signs or blocking English children from the rest of Canada from attending English school in Quebec, were eventually quashed by judicial challenges, its main purpose was accepted by the courts as a reasonable imposition.

Under the current proposal, the government has not been able to show there is an pressing problem that needs to be addressed, said Hugo Cyr, a professor at the department of legal sciences of Université du Québec à Montréal.

Prof. Cyr recalled that the minister promoting the charter of values, Bernard Drainville, has not been able to give quantitative measures of the problem or even an estimate of the number of civil servants now wearing conspicuous religious gear.

"All he could say was that there was a malaise … that doesn't hold up legally."

THE BURDEN IS NOT THE SAME

Supporters say the charter encourages religious neutrality by putting everyone on the same footing.

Louis-Philippe Lampron, a law professor at Laval University, notes however that the values charter would require some people to shed an intrisic part of themselves while the majority doesn't have to make the same sacrifice.

"The charter says that if you want to integrate into Quebec society you have to leave your religious symbols in the closet," Prof. Lampron said.

"However, the majority of Quebeckers leave nothing in the closet. The majority of Quebeckers are agnostic, they are atheist and they don't wear symbols."

He said Bill 101's language requirements were not as burdensome as shedding one's turban or kippa because "you can learn a language without renouncing who you are."

Prof. Cyr noted that, unlike the current proposal, Bill 101 imposed a burden that affected all Quebeckers.

While anglophones were most aggrieved about how the language law affected them, it also imposed restrictions on the majority. Francophone parents, for example, can't just send their kids to English schools, he said.

Conversely, Prof. Réaume noted that historical language tensions created population-wide problems in Quebec that don't exist in the current debate on religion.

She recalled that before 1977, francophones were excluded from many professional opportunities because anglophones dominated the business world in Quebec. Bill 101 opened doors for the majority population by gradually making French the language of the business place.

A civil servant with a turban, a kippa or a hijab is not as harmful, Prof. Réaume said.

"There is nothing like that with respect to wearing religious symbols," she said.

"I can be served by someone who wears a turban and it doesn't make me think, `Oh gee, I want to become Sikh' … That's just an absurd idea."

THE PRECEDENT OF BILL 101

Matthew Harrington, a law professor at the University of Montreal, took a different view, noting that the Supreme Court of Canada does not allow unfettered religious rights.

In 2009, for example, the top court ruled that a Hutterite community in Alberta had to abide by provincial rules requiring them to have photos on their driver's licenses.

Prof. Harrington argued that Bill 101 has already opened a path for those arguing that Quebec needs to infringe some rights to preserve its societal traits.

"Bill 101 is very much a precedent for the idea that Quebec is a distinct society and is entitled to take what steps it deems to protect its distinct society," he said.

"I'm not sure it's so obvious or so outlandish as most people seem to think… If you can uphold Bill 101 it's not that great a leap from this [proposal] here. "