Set against a royal blue background and hung under an arch of gilded gold-leafed boughs, the crucifix at the Quebec National Assembly is a focal point of the majestic room where Quebec lawmakers do their legislative business.
It is a reminder of Quebec’s Catholic heritage and a tangible expression of its religious history. And it was under its shadow, last week, that the Parti Quebecois, which currently holds the majority in the Assembly, introduced its long promised “Charter of Quebec Values”.
The juxtaposition of the crucifix and the introduction of this charter, which was so central to the Parti’s campaign in last year’s election, are both ironic and important. If put into effect, the Charter of Quebec Values would bar all public employees in Quebec from wearing a “hijab, turban, kippa, large visible crucifix”, or other “ostentatious religious symbols while on the job … require those receiving or providing government services from covering their faces,” and “amend Quebec’s human rights legislation to specify limits for when someone can stake a religious claim”.
While some groups could file for exemptions from these regulations, these exemptions cannot be availed by daycare workers or elementary school workers.
The crucifix stays
The large crucifix in the Quebec National Assembly, however, would stay. This is because the new charter, while imposing all of the restrictions above, insists on the retention of those symbols considered “emblematic of Quebec’s national heritage”.
The crucifix in the National Legislature, the cross atop Mount Royal in Montreal, and the many religiously based names of towns and cities in Quebec thus would not be touched. Also permitted would be “small” signs of religious identification, such as a cross or a crescent pendant around one’s neck, and the large amount of religious subsidies that the Quebec government provides private religious schools, most of which are Catholic. Similarly, prayers said at the beginning of municipal council meetings, which have previously come under fire for excessive mingling of religion and state functions, would continue.
|Quebecois took to the streets to denounce a proposed bill to ban the wearing of religious garb by government employees [Reuters]|
The introduction of the proposed charter by Parti Quebecois set off protests throughout Canada. Among the criticisms levelled is that the charter, under the cover of “promoting secularism”, essentially aims to exclude religious practices of newer immigrants to Quebec.
A few days after the introduction of the proposed charter in the National Assembly, hundreds of Muslims took to the streets in Montreal, shouting “No to the Charter!”
Bernard Drainville, the Quebecois minister who introduced the charter, defended against criticisms by saying that the ban on the wearing of religious symbols by public employees would “help foster a greater sense of unity” among the people of Quebec. In his view, the best way to respect religion was for the state to “have no religion at all”. He went to say that this principle of religious neutrality “did not apply to the crucifix in the Assembly which has been there since 1936”.
The critiques of the proposed charter are not limited to the gripes of one or two minority religious groups in Quebec. Section Two of the Canadian Charter of Rights and Freedoms explicitly spells out freedom of conscience and religion. Section 27 of that charter, which sets out interpretive principle, further instructs that it “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”. Furthermore, these constitutional prescriptions have been interpreted by the Supreme Court of Canada in various iterations of rights of individuals to engage in religious display as well as to wear religious symbols.
Protecting freedom of conscience
The landmark 1997 case Sydnicat Northcrest vs. Amselem, involved Jewish petitioners versus their high-end condominium association which forbade public religious displays on the premises. The petitioners argued that their religious faith required them to dwell in a “succah”, or open roofed hut, for nine days during the Jewish festival of Succot. For this purpose they had erected an open roof hut on their balcony. The condominium association, whose rules specifically banned any decorations or religious displays on balconies, protested.
The proposal would thus infringe upon the freedom of conscience and religion, and the right to equal benefit of the law without discrimination.
In its decision, the Supreme Court of Canada ruled in favour of the petitioners and against the Association. Unlike the lower court, which had considered the question of whether the petitioners’ belief that they were required to live in such a dwelling was “objective,” the Supreme Court determined that a belief was “protected” if it triggers religious freedom, if it is interfered with in a substantial way, and if it does not impinge substantially on the rights of others.
In this sense, it is the freedom of conscience that the Court sought to protect rather than pushing judges into questions of whether something was or was not permitted by a particular faith. A later case, Multani vs. Commission scolaire, went even further, finding that school districts did not have the right to prevent a Sikh student from carrying the ceremonial dagger, or “kirpan”, because it substantially impinged on his freedom of religion. Even though the safety concerns of the school district were substantial, the court ruled there were ways in which they could be addressed without banning the right of the student to carry what he believed was religiously mandated.
Given the above, it seems unlikely that the Quebec Charter will be able to withstand Constitutional scrutiny. A number of Canadian legal scholars have already criticised the Charter for its discriminatory effect on certain religious minorities. According to Hugo Cyr, Professor of Public Law at the University of Quebec, by “forcing state personnel to choose between their employment and their own sincere religious convictions, the proposal imposes an exceptionally heavy burden on members of certain religious minorities. The proposal would thus infringe upon the freedom of conscience and religion, and the right to equal benefit of the law without discrimination.” Furthermore, Quebec has failed to meet the legal requirements of demonstrating a “rational connection” between its desire to maintain state neutrality from religion and the bans it seeks to impose.
Quebecois support charter
Those, of course, are the legal arguments, and all of them suggest the imminent demise of the proposed charter as soon it is challenged in a Canadian courtroom. At the same time, poll numbers revealing that 58 percent of Quebecois voters support the proposed charter point to dismal estimations regarding the Canadian or at least the Quebecois voter’s attitude towards religious minorities.
This is particularly notable in the Canadian context, because unlike many other Western industrialised nations, Canada’s commitment to minority rights has been strong and minority groups have flourished. Canada is the only country in North America that has a presumption toward “multiculturalism” enshrined as an interpretive principle in its Constitution. The Canadian First Nations have not only been historically recognised but are routinely provided with legislatively mandated recognition and accommodation.
It all seems to fall apart when the religious minorities in question happen to be Muslim. In the current case, the Parti Quebecois is attempting to ban face veils (only Muslim women use face coverings) and mandate a denial of government jobs and benefits to those who wear them.
It is not the first time that a Canadian province has been confronted with the task of balancing the religious freedoms of a minority and the xenophobic fears of a majority. In 2004, the State of Ontario faced a group rights initiative by members of the Muslim community to recognise Sharia Arbitration Courts as venues for dispute resolution for personal law matters ranging from divorce to inheritance. The verdicts of these arbitration panels would still have to be approved by a civil judge in a Canadian Superior Court. Under the Arbitration statutes that existed in Ontario, such courts were already permitted to other religious groups such as Jews and Roman Catholics. However, the public outcry against recognising the Sharia courts was so significant and created such pressure on them that the Ontario legislature scrapped their entire Arbitration statute.
Threatend by religious expression
The case of Quebec and the ballot mandated xenophobia that has produced the proposed charter suggests a deep and troubling move away from the principles of multiculturalism that Canada and Canadians have been so proud of. It would seem that encounters with more Muslims and immigrant minorities (as opposed to the First Nations), whose differences are real and visible, has revealed the weak basis of tolerance in the country.
While the Ontario case was a demand for recognition initiated by Canadian Muslims, this latest effort in Quebec seems driven entirely by a majority that sees the religious expression of a minority as a threat to their own conception of Canadian and Quebecois identity. As a result, the electoral processes, which rely on the strength of numbers and demography, are bringing into power forces that seek to change the very character of inclusion in the country.
The task of standing up for minority rights and multiculturalism will, in this new era, fall squarely in the domain of Canadian courts, which must uphold the principles of equality that the polity seems to have rejected.
Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.