The Quebec Charter of Values vs. Oakes

By now, the proposed Quebec Charter of Values and the enforced secularism it promotes have been debated in the media, on blogs and around the water cooler consistently for the past few weeks. For the most part, the debate has centered around the proposed ban on conspicuous symbols worn by public sector employees. Most of what has been written is scathing and attacks the irrationality of the proposal, not to mention its blatant systemic discrimination, if not its direct discrimination (it is certainly not a coincidence that Christians do not wear conspicuous religious symbols or clothing, but that Muslims, Jews, Sikhs and Hindus do). But even laws which are unfavourably received by the public often pass constitutional scrutiny.

But what would happen if the proposed Charter of Values was subjected to legal scrutiny in a courtroom under the Canadian Charter? I point out as an initial point that this is unlikely to take place, in any event, for two main reasons: first, the Charter of Values would have to be adopted by the legislature – not an easy task in light of the minority position of the PQ; second, even if it is adopted, Quebec could still invoke the Canadian Charter’s section 33 notwithstanding clause, to shield the new provisions from judicial review.

The analysis below is of course superficial – a legal blog is not the same as a Supreme Court factum – but I hope it provides some (more) food for thought.

So what can be said about how a constitutional challenge would likely play out?

Well, for one, it is so obvious that the Charter of Values infringes freedom of conscience and religion under section 2(a) of the Canadian Charter, as it was most famously described by Chief Justice Dickson in R. v. Big M Drug Mart, I suspect this would be conceded by the Quebec government. While recent debate has centered around the more obvious infringement to section 2(a), the right to equality under section 15 would also likely be thrown in, since the ban on “conspicuous” symbols adversely affects certain religions more than others. Section 15 equality rights would also anchor arguments pertaining to the infringement on women’s rights.

The true debate would center around section 1 and whether the limits are reasonable and demonstrably justified in a free and democratic society. Since 1986, this has been formulated by the Oakes test : do the restrictions on religious freedoms proposed by the Quebec government have a « pressing and substantial objective », are they « rationally connected » to that objective, are they as limited as possible to achieve that objective, and do the positive effects outweigh the deleterious ones.

Pressing and Substantial Objective :

The Quebec government has somewhat of a steep hill to climb from the get-go to convince the Court that state neutrality and the separation of church and state are « pressing and substantial objectives ». Although the Supreme Court has often glossed over this part of the Oakes test, deferring to provincial governments on their legitimate objectives, it will likely look at it more closely in the case of the Quebec Charter of Values.

First, constitutional jurisprudence has yet to establish that state religious neutrality is a pressing and substantial objective, and some thought will have to be given to just how pressing and substantial it is, particularly in the face of a competing right which is not only constitutionally protected in Canada but also solidly recognized in liberal democratic thought as a fundamental human right (not to mention, in the face of a law which purports to allow municipalities to simply opt-out of the law’s application). It is also far from evident that religious neutrality as it is conceptualized by the Quebec government is a legitimate objective. Although the separation of church and state as a general proposition is probably a worthy objective, the government seeks to apply it by prohibiting the wearing of religious symbols by public sector employees.

Second, the Quebec government has not put forward any evidence that public servants who do wear religious symbols make decisions or act in a manner that affects the rights and freedoms of others, or that state neutrality in Quebec is in any way threatened. Now, I am not suggesting that a government may only enact legislation when armed with sociological studies and iron-clad evidence of problems, but surely, part of deciding whether an objective which infringes a Charter right is constitutionally legitimate must involve some assessment of the necessity for that law. (For a more fulsome discussion of the first step of the Oakes test in this context, see Professor Emmett Macfarlane’s article here, in which he argues that the objective sought by the Quebec government is largely symbolic in nature, which has always been inherently problematic for the Supreme Court)

But let’s assume that this first part of the Oakes test will succeed. It is rather the way that the government proposes to implement it which creates the most constitutional hurdles.

Rational Connection Test :
Does regulating what people wear really achieve the objective of state neutrality? It is hard to see just how wearing a religious symbol necessarily impacts the neutrality of a state employee, or how taking off such a symbol between 9 AM and 5 PM on weekdays removes any bias of conscience (as a reminder, the Charter of Values would not only apply to those employees making decisions, such as judges, but also, for example, some teachers). Furthermore, any rational connection is rendered irrational by the incoherence and absurdities the Charter of Values would create such as the fact that there is no problem with a deeply religious Muslim man being appointed to office, while a Muslim woman who wears the headscarf could not hold office, or that a Jewish man who wears a kippa could not apply for a public sector job but his equally religious wife could. How can this possibly be rationally connected to the stated objective of gender equality?

Additionally, the arguments on the rational connection front are considerably weakened by the decision of the Quebec government to not remove the cross in the National Assembly, or to continue allowing Christian prayer in municipal councils, or to maintain the cross on top of Mount Royal (at the expense of taxpayers, both practising and not). Tsvi Kahana of Queen’s University has also pointed out that the law would presumably not ban Christmas trees in public offices.

If state neutrality is such a pressing objective and if banning overt symbols is the means to implementing this objective, how can the favouritism afforded the majority religion be justified under the banner of “heritage”? The decision to maintain these Christian symbols, and their overt presence in public office for the past century seems to support the exact opposite of what the government is seeking, since state neutrality has evidently not been threatened by overt religious symbols in the past. The Christian cross does not cease to be a religious symbol because Premier Marois has decided that it is part of Quebec’s “heritage”. A more direct criticism of the choice to keep the cross in the National Assembly comes from an article published last week in The Economist entitled “When is a crucifix not religious?”. The answer: “When it is the object of an electoral calculation”. (I am sure sociologists and anthropologists would have much to say about the fluidity of notions such as “heritage”, “religion”, “culture” and the difficulty of categorizing the elements of these concepts, as I am sure defining what an “overt” symbol is will create more problems than it seeks to solve).

From a more theoretical point of view, I think the real question is this : how has the Quebec government managed to hang a proposal which limits freedom of religion on the values of state neutrality and the separation of church and state, when these values were implemented in Western democracies precisely to protect citizens’ freedom of religion and promote religious diversity ? It seems that the discourse surrounding the Quebec Charter of Values has obliterated the fact that state neutrality with regard to religion is a means of respecting and protecting everyone’s beliefs. But the Charter of Values does the exact opposite by infringing upon people’s beliefs. This manipulation fundamentally misunderstands that state neutrality is meant to prevent the state from imposing a particular religious belief, not curtail the right of individuals to express their personal beliefs.

In other words, not only is there no “rational connection” between state secularism and the banning of all religious signs for public servants, but the measures are antithetical to the objective itself.

Minimal Impairment Test :

Here is where the Charter of Values runs into more problems. The Supreme Court has been consistently extremely unfavourable to blanket bans restricting Charter guarantees, in particular those as central to human rights as the freedom of conscience and religion. In my view, such a ban is inherently suspect and the burden of proof should weigh heavily on the government to show how such a wide-ranging ban is not overbroad.

How will the Quebec government justify that this ban is necessary for all government employees, whether they have discretionary power to make decisions, whether they are a judge or a janitor, whether they have contact with the public or not?

Balance :

In the balance of salutary and deleterious effects, it is difficult to see how the bans in the forms proposed by the Quebec government will pass, particularly since the expected “benefits” are almost entirely speculative and hypothetical. So far, public service employees have worn religious symbols and there has not been any serious suggestion that state secularism (or even the appearance of state secularism) is in jeopardy in Quebec. It takes much more than this to infringe on the “primary” Charter rights, such as freedom of conscience and religion

On the deleterious effects side, the choice that certain people will necessarily be forced to make between their employment and their sincerely held religious beliefs cannot be justified on such a flimsy objective – an objective which comes into conflict with the economic rights which the Quebec Charter of Human Rights and Freedoms itself championed.

In addition, it is difficult to see how the government’s objective of gender equality is achieved by forcing many women, such as Muslim women wearing a headscarf or Hindu women wearing a bindi, to entirely abandon a career in public service. What the Quebec Charter of Values does is perpetuate the still prevalent systemic discrimination against women occupying positions in high level careers like the public service, not to mention that it perpetuates the systemic discrimination against religious minorities in the province. Duplessis anyone?

Puisque les articles rédigés récemment au sujet de la Charte des valeurs attirent les préjugés de ceux qui supposent que les “vrais” québécois sont pour cette charte et qu’encore une fois, les droits des québécois sont contraints par les canadiens anglais: je ne suis pas (seulement) une canadienne anglophone, mais bien une québécoise francophone, née au Québec, éduquée pendant treize ans en français et athée.