While the Parti Québécois’s failure to win reelection has put its Charter on the shelf, the debate over secularism is not over. All parties in the recent election campaign promised some kind of legislation on secularism, including – at least to a degree – the Quebec Liberal Party, now in power.
The issue of laïcité did not magically appear on the Quebec political scene last year. It has been a feature of Quebec public discourse for decades – indeed, for well over a century. To understand its meaning and prospects, we need to place it in the context of republican thinking originating in France, of Quebec’s ideal of cultural convergence, and of the relevant jurisprudence of Canada and in other Western societies.
The republican roots of Quebec secularism
One cannot appreciate the motivation underlying a charter of secularism without understanding the influence that French civic republicanism has had on the development of the political thinking of La Belle Province. The first major push toward republicanism came from the leaders of the failed Lower Canada Rebellion, whose 1838 Declaration of Independence proclaimed the formation of the Republic of Lower Canada. Among the document’s key points were the abolition of all feudal and seignieurial privileges and the complete separation of church and state – including the elimination of the mandatory tithe to the Catholic Church.
In 1905, the Third French Republic adopted the Loi sur la séparation des Églises et de l’État. From this point on, the public sphere in France acquired a quasi-sacrosanct character and laïcité was enshrined as a fundamental tenet of French republicanism. Citizens would enjoy complete religious freedom in the private sphere while, in the public sphere, the Republic would enjoy complete freedom from religion. This conception of the public space gradually took hold in Quebec as the wheels of the Quiet Revolution turned and the Quebec people en masse began rejecting religious intrusion into civil and political affairs.
The influence of French civic republicanism in Quebec is evident in several highly contested reforms. The obvious example of how French and Quebec republican thinking perceives the state is the Charter of the French Language (Bill 101) of 1977. While classical liberalism views the state as the principal threat to personal freedom, republicanism views it as the ultimate tool through which individuals are liberated from their birth condition, especially from communitarian and market pressures beyond their control. Whatever their situation, the Republic offers individuals equality, legitimacy and the chance to become one’s own person, liberating them (if they so wish) from the constraints of their background. The same reasoning can be found in the act to abolish religious school boards – and amend article 93 of the Constitution Act, 1867 – 20 years later.
Liberal democracy claims to offer individuals the same possibility, but essentially leaves them to their own devices. By contrast, the Republic not only makes liberation a theoretical possibility but actively provides individuals with the concrete tools they need to change their condition. Hence the Charter of the French Language freed Quebec’s francophone majority – which, in turn, forms the bulk of Canada’s French-speaking minority – from a liberal marketplace that deprived their language of any economic value. This liberation came at a price for those who would rather have continued to use their economic clout to maintain the market dominance of English, but time has shown that this cost was more than offset by the unprecedented improvement of the francophone condition in North America which the oft-vilified Bill 101 ushered in.
The cultural convergence ideal
The federal government’s policy of multiculturalism within a bilingual framework has been regularly rejected by every successive Quebec government and is one of the primary factors in Quebec’s ongoing refusal to sign the 1982 constitution. Aside from the marginalizing effect that the policy’s detractors accuse it of having on francophones, reducing them from a founding people to simply another minority among many living on the periphery of an anglophone majority, Canadian multiculturalism is also criticized for viewing language as a mere tool of communication, divorced from the distinct culture a language naturally conveys.
Quebec views itself as a society capable of offering newcomers a common language and culture to be made stronger through a process of integration termed cultural convergence – a middle way between multiculturalism (encouraging newcomers to retain their culture) and assimilation (abandonment of one’s culture of origin in favour of the national host culture).
The cultural convergence model expects immigrants neither to abandon their culture nor to attempt to keep it intact. Rather, it requires newcomers to adopt the language of convergence (French), and to acknowledge that they have embarked on an ongoing cultural exchange and that their children will inevitably become part of the culture of convergence to which all Quebecers, immigrant and native-born, are constantly contributing. This natural process of convergence ensures that the common culture incorporates the most advantageous aspects of each incoming culture into a common, heterogeneous national culture that belongs equally to all citizens.
It is still an open question, however, whether Quebec’s culture of convergence will accept or reject conspicuous religious symbols in the public service. If past tendencies are any indication, the progressive secularization of key state services – hospitals and schools – suggests that the mix of religion and public institutions fits poorly with the culture of convergence, though it has no problem with individuals wearing any outwardly expressive cultural or religious symbol they wish in the private sector.
Would a charter of secularism be legal?
Would a charter of secularism similar to the PQ government’s Bill 60, if adopted, survive the court battles it would most likely spark? Most of the dispositions of such a charter would probably be constitutional. The principal controversy provoked by Bill 60 was the proposed prohibition of conspicuous religious symbols in the public sector workplace in article 5.
In and of themselves, the proposed restrictions probably violate section 2(a) of the Canadian Charter as interpreted by the Supreme Court of Canada (SCC). To rescue the impugned disposition, the Quebec government would have to prove that the violation can be “demonstrably justified in a free and democratic society” under section 1. One relevant argument here is that several societies universally recognized as both free and democratic already have similar restrictions which have survived the most robust human rights court challenges. Aside from the obvious French example, several Swiss cantons, several German Länder and Turkey are among those jurisdictions whose similar restrictions have been upheld by the European Court of Human Rights (ECHR). Article 9(2) of the European Convention on Human Rights, an international treaty ratified by 47 countries, states:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Given the similarity of the Canadian and European criteria for justifying a restriction on religious liberty, the fact that the ECHR has time and again defended the right of member states to protect their secular nature by imposing limits on religious expression in the public sphere is particularly relevant.1 Knowing that the highest human rights court in Europe has consistently upheld the same type of restrictions that the PQ government proposed as necessary in a free and democratic society leads us to wonder whether the SCC could indeed invalidate the prohibition of conspicuous religious symbols in the public sector in as perfunctory manner as many Canadian jurists have suggested.
The SCC is certainly not bound to follow the reasoning of the ECHR, and it is presumably the Oakes test (that the objective of a limitation under section 1 must relate to pressing and substantial concerns and the means chosen must be reasonable and demonstrably justified), as performed by the Court, which will determine the outcome. However, more than one constitutionalist must have been surprised to see the result of that test in the SCC’s 2009 Hutterian Brethren v. Alberta decision, where the Court overturned the Alberta Court of Appeal’s ruling, holding instead that Alberta’s refusal to deliver drivers’ licences to members of a religious group whose beliefs forbade their being photographed was justified under section 1 of the Canadian Charter.2 This decision conveys two clear messages. First, legislators’ duty to act respectfully as to human rights does not mean that they must craft special arrangements for every citizen with a sincere religious objection. Second, there is a difference between placing a restriction on access to a right and a restriction on access to a privilege.3
With these considerations in mind, it is not impossible to conceive that the SCC might deem prohibition of conspicuous religious symbols in the public sector workplace justified under section 1 of the Canadian Charter. Nor can the possibility of a constitutional dialogue between the National Assembly and the Supreme Court be ignored. If a proposed charter does fall short of the constitutional standard, it may well survive in a slightly tempered version. For example, the restriction on conspicuous religious symbols may follow the recommendations of the Bouchard-Taylor Commission, established by the Liberals, and apply only to those employees in a position of authority (such as police officers, judges, etc.) instead of to all public service employees, a position in effect endorsed by the Coalition Avenir Québec and Québec Solidaire, as well as Fatima Houda Pepin (see p. 101). We have seen this back-and-forth between legislators and the courts before, especially with regard to the Charter of the French Language, a law which – despite numerous court challenges and the frequent invective in the English-Canadian press (even today) – still stands, although with several jurisprudence-inspired moderations from its original form.
Just because the charter of secularism is now off Quebec’s immediate political and legal agenda, our understanding of the origins and development of laïcité in Quebec and its presence in other free and democratic societies reminds us that the issue will remain. If and when any such legislation makes its way to the Supreme Court, uncertainty will prevail. The Hutterian Brethren decision makes such a case particularly difficult to predict, and should the Court let itself be at all inspired by the consistent jurisprudence of the ECHR on this very matter, all bets will be off.