In 1994, Claire L'Heureux-Dubé was one of the judges in a landmark constitutional case in which the Supreme Court affirmed no human right is inherently superior to another.
Now, she is rejecting that view with her support of Quebec's proposed ban on religious garb in government workplaces, citing an evolution in legal thinking outside of Canada.
"Regarding the hierarchy of rights, the distinction I make is made elsewhere in the world," she said in an e-mail reply to questions posed by The Globe.
Ms. L'Heureux-Dubé, known for speaking up for outsiders during her 15 years on the court, is the most prominent jurist to argue for the constitutionality of the ban. That ban is contained in a "charter of values" that has roiled Quebec since the separatist Parti Québécois proposed it earlier this year, pitting rural communities against urban, and religious minorities against some (though not all) women's rights advocates.
As Quebec heads toward a possible spring election, Ms. L'Heureux-Dubé's views provide the PQ with fresh ammunition against the ban's critics, who include the Quebec Bar Association and the Human Rights Commission.
In her e-mail, Ms. L'Heureux-Dubé pointed to a book by the former chief justice of Israel, Aharon Barak, called Proportionality, in which he says the importance of a right should depend on the conceptions and values of a society. As an example, Mr. Barak cites the United States, which has three levels of scrutiny for rights claims, depending on the perceived importance of the right at stake. He also points out that Canada works on the basis that all constitutional rights are equal.
The Supreme Court expressly rejected a hierarchy of rights in the 1994 case Dagenais v. Canadian Broadcasting Corp. "A hierarchical approach to rights, which places some over others, must be avoided," then-chief justice Antonio Lamer wrote. "When the protected rights of two individuals come into conflict … Charter principles require a balance to be achieved that fully respects the importance of both sets of rights."
In that case, the right to a fair trial and to free speech were at odds, and a majority of the court said they could be made to work together. Ms. L'Heureux-Dubé dissented, primarily because she felt the court lacked the jurisdiction to hear the case. But she added that, "where freedom of expression and the right to a fair trial cannot both be simultaneously and fully respected, it is appropriate in our free and democratic society to temporarily curtail freedom of expression so as to guarantee an accused a fair trial."
But speaking last week at a legislative committee, Justice L'Heureux-Dubé said while freedom of religion is fundamental, the right to wear religious garb is not; it is less important, therefore, than women's right to equality.
Daniel Weinstock, a philosopher of law at McGill University, said that the "contradictions speak for themselves," not only in her support for a hierarchy of rights rejected by the court she sat on but in deferring to Quebec legislators. As a judge, she helped "lead the charge to a substantive interpretation of equality rights, taking it away from a purely formal reading. It is a bit of a reverse, to say the least, when all of a sudden her position is that courts should be deferential to legislators."
Daniel Jutras, McGill's dean of law, called Ms. L'Heureux-Dubé's intervention "unacceptable. Putting the weight of a retired Supreme Court justice behind [the ban] is quite problematic. I can't understand it." He said her support will have significant impact "not within the legal community but it certainly will be used by the Parti Québécois to legitimate their position that this is not a simple legal issue."
Appointed by Progressive Conservative prime minister Brian Mulroney, Ms. L'Heureux-Dubé was the "great dissenter" on the Supreme Court from 1987 to 2002. She says sees no contradiction between her support of minorities when she was a judge and her support of limits on religious expression.
"I share today the same values I had when at the Supreme Court of Canada towards the oppressed whoever they are," she said in her e-mail. "At the time it was gays, victims of rape and violence, discrimination against women, handicapped, etc., under the human dignity and equality values" of the Canadian Charter of Rights and Freedoms.