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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 ...

Prohibiting the wearing of conspicuous religious symbols by civil servants violates their right to freedom of religion and freedom of expression. But both charters accept that the state may violate the rights of people for good reasons, in a manner that is “reasonable in a free and democratic society.” To determine whether a measure is reasonable, a court must be convinced that a) there is a pressing state interest at stake and b) the measure is rational and infringes the freedom as little as possible.

To ask such questions is to answer them. There is no pressing need to monitor civil servants’ dress. There is no problem that needs fixing. No one can demonstrate that Quebec citizens receive bad, unfair or discriminatory government services because some civil servants may be wearing religious symbols. There is no evidence that people who wear religious symbols discriminate in the delivery of service.

The government suggests that appearances do matter. A civil servant should present a bland face, costume or demeanour to ensure that citizens trust that they are indeed receiving services in a non-discriminatory way – symbols over substance, you might say. Limitations on civil servants’ political speech are viewed by the government as analogous, although recently, more and more freedom of speech has been conferred on civil servants because they are people, too.

Courts do give governments latitude in deciding whether a measure is “reasonable.” If there are enough exceptions, where religious employees can still work for the government but not in direct contact with the public, a court could decide that this is good enough. The prohibition could pass, but it does not make it right. The trend should be to provide more freedom, not less.

Nathalie Des Rosiers is dean of common law at the University of Ottawa and the former executive director of the Canadian Civil Liberties Association.

Tsvi Kahana – No, it’s a blatant case of rights violation

This policy is plainly unconstitutional. The only question is how polite the court will be in stating so.

Had Quebec Justice Morris Fish, famous for calling a spade a spade, still been on the court, he would have found the purpose of “religious neutrality” disingenuous. It is no coincidence that few Christians wear “conspicuous” garb while many people of Islamic, Sikh and Jewish persuasion do. Moreover, the policy leaves untouched the crucifix at the Quebec National Assembly (where this policy would be enacted), the giant cross on Mount Royal and Christmas trees in government offices.

The inevitable conclusion is that rather than promoting religious neutrality, the true purpose of the policy is to gain political capital by ganging up on the visible symbols of visible minorities. In Baier (2008), a less blatant case of rights violation, Justice Fish did not hesitate to expose true governmental motivation. He found that an Alberta law banning teachers from serving on school boards had the purpose of retaliating against teachers after a bitter labour dispute. Even less zealous judges, relying on more technical grounds, will surely find this policy unconstitutional. The legislation is not rationally connected to the goal of “religious neutrality” because leaving Christian symbols intact sends the message of Christian supremacy, not religious neutrality; the legislation is disproportional because the concrete harm inflicted upon religious minorities far outweighs the abstract gains to society at large, if those exist at all.

Tsvi Kahana is an associate professor of law at Queen’s University in Kingston, Ont.

Kathleen Mahoney – No, it’s an unjustifiable violation of rights

Quebec’s proposal to prohibit the wearing of conspicuous religious symbols by state employees unjustifiably violates rights protected by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.

A government can violate the rights of its citizens only if it can show that the benefits of doing so outweigh the harms caused. Quebec’s proposal fails to meet the test.

The purpose of Quebec’s proposal is to achieve neutrality and secularism in the public service. Until now, employees in the public service have worn visible religious symbols, and there is no evidence that the neutrality and secularism of the public service is in jeopardy. The benefits of the prohibition are therefore speculative at best and more hypothetical than real.

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