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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 ...

At the same time, the proposal will impose heavy costs on the targeted individuals and their communities, some more so than others. Members of more visible religious minorities will be coerced into choosing between keeping their jobs and practising their faith. This is not a meaningful choice. It is deeply wrong to put citizens in such an invidious position. It is not an answer to say they can wear their religious symbols after working hours. This amounts to the government mandating how citizens practise their religion and treating some citizens as less equal than others – reminiscent of the dictatorial religious policies imposed during the Duplessis era.

On the scales of justice, the harms caused by the proposal will far outweigh the benefits to the province. It fails to meet the proportionality test and is unconstitutional.

Kathleen Mahoney is a professor of law at the University of Calgary and a constitutional and human-rights expert.

Stephen J. Toope – No, it would lead to absurdities of inequality

The proposed charter of Quebec values is not a serious attempt to grapple with a major social problem through law. It is a crass exercise in identity politics, proclaiming neutrality and inclusion but delivering a giant social wedge. It will not pass scrutiny under the Quebec or Canadian charters of rights. People with sincerely held religious beliefs will be denied public-sector employment unless they hide their religious identity, even though that identity has absolutely no bearing on their ability to do a job.

In Canada, including Quebec, freedom of religion encompasses the right not only to hold beliefs but to practise those beliefs without interference from government. Wearing religious symbols is a form of practice. Limitations upon religious practice can only be justified by showing serious social harm or injury to others – a tough test that the proposed charter of values would fail.

The inequality is revealed clearly by the Quebec government’s stated desire to ensure that the traditional (read Christian) “patrimony” of the province is protected.

Far from guaranteeing the equality of men and women, the charter would produce absurdities of inequality. An Orthodox Jewish man must wear a kippa, but there is no corresponding external symbolic expression of devotion required of Orthodox Jewish women. The man could not be hired by government; the woman could, unless the ban is extended to all wigs. The inverse is true for some forms of Muslim practice. Women wearing the hijab could not be hired, but men who have no similar requirement of modest clothing could – unless all beards are banned as well.

Stephen J. Toope is president and vice-chancellor of the University of British Columbia, as well as a professor of law.

Jennifer Llewellyn – No, it violates freedom of religion protections

As proposed, the prohibition would violate the freedom of religion protected in the Canadian Charter. The prohibitions cannot be defended in the name of freedom of conscience for those exposed to religious symbols.

The Canadian Charter protects the right to be free from state interference, including enforced secularism. The expression of personal religious beliefs by state employees does not necessarily amount to state endorsement of religion and interference with others’ freedom of religion or conscience. Neutrality requires that the state not sanction religious views or views about religion that infringe on individual freedom.

This interpretation is consistent with the commitment in the Canadian Charter to our multicultural heritage. The values charter rejects state neutrality in favour of a secularism that prohibits individual freedom. Further, if the legislation focuses on “conspicuous” symbols, it would adversely affect some religious adherents more than others and run afoul of the equality protections in the Canadian Charter.

Violations of rights can be justified if consistent with a free and democratic society. A pressing and substantial objective is required to justify rights infringement. Courts typically look for more than assertions of broad, abstract social goals like secularism or state neutrality. Even if a sufficient objective is found, it is unlikely the government could show a rational connection to the specific provisions of the legislation. The exceptions for certain symbols by size or historical significance undermine this connection. The prohibitions would also likely fail the requirement to impair fundamental freedoms as little as reasonably possible.

Jennifer Llewellyn is Viscount Bennett professor of law at Schulich School of Law, Dalhousie University.

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