Constitutional lawyer and legal commentator Don Hutchinson says it’s “unthinkable” the Quebec government would override Constitutional guarantees of religious freedom to proclaim a State-sponsored doctrine of secularism.
Rather than repeal bad legislation passed by the previous government, the government of Quebec has introduced a bill to modify it. The proposed improvements are worse, extending the flawed law’s application. Once passed, kippahs, hijabs, turbans and crosses will be unwelcome attire for those in government funded jobs. And there will be serious roadblocks for appeal to the courts.
The provincial government, like Montreal’s city council earlier in the week, also determined it’s time to remove the Crucifix from its meeting chamber.
All of this is being done in the name of laïcité, a quest for a similar secularity to that expressed in France instead of ‘State neutrality’ as prescribed for government by Canada’s Supreme Court.
It is a quirk of history that a Roman Catholic francophone Prime Minister from Quebec, Pierre Trudeau, was inspired by a Roman Catholic francophone philosopher from France, Jacques Maritain, to pursue, and ultimately secure, a constitutional Charter of Rights for Canada. Thus, it’s an ironic historic twist that Quebec remains the only non-signatory province to the 1982 constitutional amendment that brought us the Canadian Charter of Rights and Freedoms. Quebec has its own Charte des droits et libertés de la personne. In Bill 21, the provincial government plans to legislatively exempt itself from the guarantee of religious freedom found in both Charters in order to pursue secularity in appearance.
It is an idée fixe of at least the Québécois elites that Quebeckers are more Nouvelle-France than anciens Canadiens. The freedom to maintain the unique culture of la belle province was recognized in the 1763 Treaty of Paris, following defeat of French troops by British on the Plains of Abraham in 1759. Confirmed at Confederation in 1867, Quebec retained a separate legal structure, akin to France’s civil law, in addition to religious and language acknowledgements. It has long been accepted that the provincial legislature is known as the Assemblée Nationale du Québec.
In another peculiarity of history, it was a Protestant anglophone Prime Minister, born in Toronto and resident in Calgary, Stephen Harper, who in 2006 introduced the motion in Canada’s Parliament recognizing that “the Québécois form a nation within a united Canada."
On the matter of Crucifixes being removed from the municipal council and National Assembly chambers, it has long been presented by the governments of both Montreal and Quebec that these are historic artifacts. The decision to remove them is, in its own way, welcome. The Crucifixes are at last being recognized for being the religious symbols they are rather than relics of yesteryear.
The crucifixion (and resurrection) of Jesus Christ are historic events, noted in the writings of Christian, secular and Jewish authors of a contemporary timeframe to their occurrence. These two symbols, a remembrance of those events, were put in place in 1936 under the government of Premier Maurice Duplessis, a staunch defender of Catholicism. The decision is history, but is it historic? It was a different time, to be sure. The Roman Catholic Church held great influence in all aspects of Québécois life, including politics.
Although neither Canada nor Quebec could be considered constitutionally religious, Duplessis and the Québécois people held a special place of veneration for the Catholic Church. His devotion also facilitated a dark period for religious freedom in Quebec.
The Union Nationale government of Duplessis used legislative and regulatory measures to restrict and prohibit non-Catholic religious expression in the Province. Protestants and Jews knew their place and, for the most part, experienced a peaceful coexistence. But Jehovah’s Witnesses preached publicly against Catholic doctrine. Witnesses were met with the weight of the State, until Duplessis personally ran afoul of the Supreme Court of Canada for intervening to revoke the liquor license of a Jehovah’s Witness supporter.
In fact, the treatment of Jehovah’s Witnesses in Quebec was stimulus for much definition of pre-Charter understanding of rights to religious freedom, including juridical definition of the responsibility for government to adhere to the laws and freedoms of the land. It also contributed much to the impetus for our constitutional Charter of Rights, including guarantees for freedom of conscience and religion.
When the Union Nationale was defeated by the Liberal Party of Jean Lesage in 1960, the rallying cry was Maîtres chez nous – Masters in our own house. The government that had placed the Crucifixes and the political influence of the Church were relegated to relics of a bygone era.
The nationalist Coalition Avenir Québec (CAQ) was elected in 2018, and now as Gouvernement du Québec has expressed it desires to go further with Maîtres chez nous than Lesage imagined. Casting a secularist shadow over the province, the CAQ’s Bill 21 shows a Duplessis-like devotion, except to the cause of “no religion.” Premier François Legault proposes a diminished religious freedom, at least in appearance, that more resembles France’s post-revolutionary thinking than the united Canada in which was constitutionally secured the right of Quebec citizens to maintain historic religion and religious schools at Confederation, and nation within a nation recognition in 2006.
Legault has chosen to amend restrictive legislation put in place by the previous government – legislation being challenged in the courts – rather than repeal it. In an upsurge of laïcité implementation, Legault has placed before the National Assembly alterations to be done practically overnight, designed to purge long accepted religious clothing and symbols from schools, hospitals, police cruisers, courtrooms and government offices.
In contradistinction to CAQ thinking, the Supreme Court of Canada has defined the principle of State neutrality applies in regard to religion. Government is neither to favour nor hinder particular religious beliefs and practices, or non-religious beliefs and practices. Legault has decided remove the appearance that religious beliefs or practices exist from within the sphere of government funding and programs, favouring the appearance of the non-religious.
The Supreme Court has also declared the separation of State and religion – the cornerstone of Bill 21 – to be a U.S. constitutional doctrine not applicable in Canada.
Knowing Bill 21, An Act respecting the laicity of the State, is likely to run afoul of the Canadian Charter, Legault’s government has served notice it will pre-emptively use the notwithstanding clause to avoid risk of court interference. The Charte des droits et libertés de la personne will also be amended to include the declaration that “the Québec nation considers State laicity to be of fundamental importance.”
The recourse for Jewish doctors, Muslim teachers, Sikh police officers and those Christians (like myself) who wear a Cross on a chain around their neck will be to set aside visible expressions of their belief or not work for a government funded organization in Quebec. Exempted, as one might almost cynically expect, will be elected office holders, members of the National Assembly and city councils. They, after all, are representatives of the multicultural and multi-religious nature of the Québécois nation, which is banning religious symbols while existing within the multicultural and multi-religious nation of Canada.
Our current Prime Minister, Justin Trudeau, is the son of the architect of Canada’s constitutional Charter of Rights and Freedoms, Pierre Trudeau. I have disagreed with other of Justin Trudeau’s policies regarding religious freedom and the rule of law, but on Bill 21 we agree: “It is unthinkable to me that in a free society, we would legitimize discrimination against citizens based on their religion.”
Canada has come through a hard decade of judicial assaults on religious freedom, but Ottawa lawyer Albertos Polizogopoulos argues that four strong judgments this spring point to signs of new life for Canadian faith in common life