Why experts think Quebec’s secular charter won’t survive in court

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What the Parti Québécois government is trying to do with its Charter of Values has almost never been attempted in Canada. The PQ has proposed a law that explicitly limits religious freedom, for goals it deems more important – secularism, state neutrality and gender equality.

Four years ago, the Supreme Court of Canada narrowly upheld an Alberta law that required all drivers to be photographed for their licenses, a practice that a Hutterite group said violated their freedom of religion. The court ruled 4-3 that the purpose of fighting fraud was legitimate and important, that there was no other way to achieve it, and that the benefits outweighed the harms.

Most constitutional experts think that on all those grounds – the purpose, the choice of how to achieve it and the weighing of benefits and harms – Quebec's proposed values charter will not stand up to a court's scrutiny. (The law would ban public servants from wearing conspicuous religious symbols such as a hijab, turban or kippa, and it would bar Islamic face veils on women giving or receiving government services.)

Kathleen Mahoney, a law professor at the University of Calgary, said Quebec's proposed Charter of Values is a throwback to dark chapters in Canadian history, such as when aboriginal religious ceremonies including the sun dance were banned in the 1920s, for the purpose of assimilating natives.

"There's no way that the Supreme Court is going to uphold this legislation," she said, recalling that in the very first Supreme Court ruling on freedom of religion under the Canadian Charter of Rights and Freedoms, the federal Lord's Day Act that made it a crime for stores to open on Sundays was struck down by the Supreme Court in 1985.

Prof. Mahoney said the province is not being true to its stated purposes, because the Quebec values charter would not remove the crucifix from behind the Speaker's chair in the National Assembly, nor would it change the names of municipalities that come from Christian saints.

"You can't have it both ways," she said.

The values charter still needs to be debated, studied and voted on before it takes effect.

The Supreme Court has given strong support to religious freedom in three Quebec cases: in 2006, it voted unanimously in favour of a schoolboy's right to wear a kirpan, a Sikh ceremonial dagger, in Quebec; in 2004, the court upheld the right of Jewish condo owners to build a Sukkah on their balcony, even though their condo agreement prohibited balcony structures; and in 1994, the court upheld a claim by Jewish school teachers to receive a paid day off for Yom Kippur.

Hugo Cyr, a law professor at the University of Quebec at Montreal, said the PQ government would probably argue that the neutrality of the state depends on having no religious symbols on state employees. The Supreme Court would probably reply, however, that the state's neutrality could also be conveyed by people wearing a variety of symbols – a choice that respects constitutional rights, he said.

He called the prohibition on religious symbols worn by public servants "a frontal attack on freedom of religion."

The law's singling out of an Islamic religious practice is almost without precedent in Canadian history, University of Toronto law professor David Schneiderman said.

"It intentionally singles out niqabs, which is really quite extraordinary," he said.

When Canada first prohibited polygamy in 1890, it identified the practice as a religious one, but that reference was removed in 1954, Prof. Schneiderman said.

The charter "stands on weak constitutional ground," he said. "The Supreme Court is not going to be respectful of a law that targets religious freedom intentionally," unlike in the Hutterite case.

Prof. Schneiderman said he once asked his students to determine whether a law proposed by a previous Liberal government in Quebec to limit the wearing of face veils was constitutional. "It was a terrible question – it was too easy for them. A whole first-year class of 80 students could not see how this could pass constitutional muster."

The protections in the Canadian Charter of Rights and Freedoms are not absolute; Section 1 allows for limits on rights, as long as the government placing the limits can show that they are justified in a free and democratic society.

That means an obligation on government to show some evidence of harm that the law is meant to protect against, Prof. Schneiderman said. That evidence might address disruption of public order, difficulties serving or receiving public services because of face-coverings, or a record of complaints.

A 2008 report commissioned by Quebec's former Liberal government on accommodation, and written by sociologist Gérard Bouchard and Charles Taylor, could provide some of that evidence, but Prof. Schneiderman argued that the report doesn't go far enough to make the government's case.

Rather than set out evidence, the province underlines in the charter's preamble its goals of preserving secularism, gender equality and state neutrality toward religion. But "the objective is symbolic, and the harm is real," Prof. Schneiderman said.

While some European countries, such as France, have imposed limits on the wearing of Islamic face veils, Prof. Schneiderman said European human-rights law allows for a "margin of appreciation" of national cultures, whereas Canada, as a single state, does not have the same concept.

Sean Fine is The Globe's justice reporter.