This morning, the Québec Charter of Values was unveiled in the Québec National Assembly. The Charter of Values was proposed by the minority government in Québec—the Parti Québécois—and aims to restrict religious clothing and symbols in the public sector. Not surprisingly, the “Charter” has been poorly received by minority groups in Québec and by many Canadians outside the province.
In 1982, Canada entrenched a Charter of Rights and Freedoms (CCRF) in its constitution. The CCRF enshrines freedom of religion and freedom of expression as “fundamental freedoms”—in sections 2(a) and 2(b), respectively. At first glance, it would appear this Charter of “Values” would not hold up to judicial scrutiny.
But wait! Section 33 of the CCRF—the notwithstanding clause—permits a government to override the Charter (that is, pass an Act that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”). If the Québec government can circumvent the freedoms of religion and expression, what is stopping them from passing this law?
The notwithstanding clause is limited to sections 2 and 7–15. (And good thing! You should be comforted to know that governments in Canada can only override freedoms of religion, expression, the press, life, liberty, and security of the person; the rights to legal counsel, a speedy trial, a presumption of innocence until proven guilty, and equality under the law; and the rights against arbitrary imprisonment and cruel and unusual punishment—glorious and “free!”) With that said, the notwithstanding clause does not allow a government to override section 27, which states that the Charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” In Videoflicks Ltd. et al. v. R. , the Ontario Court of Appeal said section 27 served to reinforce section 2, even if it inconvenienced the government. The Supreme Court of Canada largely agreed with this logic in R. v. Edwards Books .
It is section 27 that I believe will be used to strike the Québec Charter of Values down as unconstitutional. That is, if it ever passes the National Assembly. Technically, if that happened, the federal government has a power of disallowance (the Governor-General, on the advice of the Prime Minister, can disallow a law passed by a provincial legislature). However, that clause has not been used in half a century, and the Prime Minister would need to be quite passionate about the Charter of Values to implement it after such a lengthy dormancy (and other than having a stylish haircut, our Prime Minister appears to have few passions).
More important than the constitutionality of the Charter of Values is its simple existence at all. Québec claims that it is trying to “ensure the neutrality of the state.” Is it merely a coincidence that this Charter coincides with a booming Muslim population in Québec? The Premier has said that they will be unable to enforce the Charter against people who are discretely wearing a Crucifix or Star of David. How convenient for Ms. Marois, Premier of Québec, that Muslims tend to wear more conspicuous religious symbols! That makes it so much easier for her to implement laws that are covertly racist on the guise of “applying to everyone.” Bernard Drainville, Member of the National Assembly, claims that ”the state must be neutral because it must show the same respect for all religions—regardless of their beliefs.”
It will be interesting to see how this plays out, but it suggests at the ever-persistent divide between Québec and the rest of Canada. I even saw one comment that this is Québec’s effort to drive an additional wedge between itself and Canada as a separation tactic. I would have considered this further, if not for a similar law in France (another state touting secularism) in 2004 which banned symbols of faith in schools.
It’s not always a bad thing when a government restricts a freedom for the good of society. Hate speech and child pornography are examples of “freedoms” that should be restricted. However, those examples have a very clear cost-benefit analysis, with benefits of restricting freedoms far outweighing the costs. To me, banning religious symbols seems to benefit no one, and yet is denying (costing) someone the right to express what is very likely a deeply-rooted part of who they are. Shame on the government for trying to pass off its prejudices as a “separation of church and state.” Or, if Marois et amis really think that denying a fundamental freedom to a large chunk of Québec’s population will somehow make its society better, then perhaps I’ve grossly overestimated their intelligence.
The crucifix over Mount Royal? It will stay, of course, as it is part of “Québec’s cultural history.”
[Update: An excellent post by Matt Gurney in the National Post compares the Québec Charter of Values to airport groping, and another by Emmett Macfarlane in the Globe explaining how, despite its systemic racism and unconstitutionality, the Charter of Values could still become law.]