Former Supreme Court justices offer conflicting views of Quebec’s secular charter

Share

Two former justices of the Supreme Court of Canada are offering conflicting views of the Quebec charter of values, underlying the deep divisions over an issue that may dominate the next provincial election.

On Friday, one former judge called the charter "particularly odious" in the way it would treat Muslim women. However, one of her former colleagues argued that the government's action is in line with Quebec women's long fight for gender equality.

In a comment piece published in La Presse, Louise Arbour, who sat on the top court from 1999 to 2004 and is a former United Nations high commissioner for human rights, condemned the proposal to bar public-sector workers from wearing conspicuous religious headgear as an idea falsely portrayed to be religiously neutral.

"Let us remember how easy it is to restrict the freedom of others, especially when this initiative comes at no cost to those who advocate it," Ms. Arbour said in the piece.

Noting that the policy would affect mainly female Muslims, she wrote: "It is particularly odious to put the burden on already marginalized women whose access to employment is a key factor to gain autonomy and integration."

Meanwhile, Claire L'Heureux-Dubé, a Supreme Court justice from 1987 to 2002, was in Quebec City testifying before the legislature committee looking at a draft of Bill 60, the law the would enshrine the charter.

Ms. L'Heureux-Dubé said that, under Quebec's Civil Code tradition, interactions between people are defined by legal statutes rather than legal precedents on individual rights. "The social context in Quebec is different from the rest of Canada," she said.

The two opposing visions reflect the fact that the judges are of different generations and took different legal paths.

The 86-year-old Ms. L'Heureux-Dubé was called to the bar in 1952, barely a decade after Quebec became the last province to admit women to the legal profession. She was one of the first women to practise family law in Quebec.

In her remarks before the committee, she talked about Quebec women's "long march towards equality," which she argued would be helped by the charter.

Ms. Arbour, who is 20 years younger, was called to the Quebec bar in a different social climate in 1971, and has spent much of her career dealing with international human-rights issues. In her article, she called on Quebeckers to adopt a more worldly outlook.

In Ms. Arbour's view, the charter is clearly a restriction on religious freedom, and its proponents have failed to prove that such a breach is necessary.

"The state has the burden to prove that an infringement of a fundamental freedom such as freedom of religion is justified. Nothing indicates that this is the case in this proposed charter," she wrote.

"And those who want to rely on our history to claim that this is about state neutrality rather than discrimination should remember that it took the intervention of the Supreme Court to remedy the injustices that the government of Maurice Duplessis inflicted on Jehovah's Witnesses and communists."

However, Ms. L'Heureux-Dubé does not think the ban on religious gear would affect religious rights.

She argues that faith is a person's private state of mind and that wearing a head scarf, a kippa or a crucifix can be prohibited since it is only a way to display devotion.

"In my opinion, religion is foremost an internal commitment," she said. "Religious signs are part of the displaying of religious beliefs, and not part of the practice of religion. All state employees are subject to standards of loyalty and restrictions on their freedom of political speech, which was upheld by the courts. Why would the freedom of religious expression be different?"

Ms. L'Heureux-Dubé did not comment on Ms. Arbour's paper, saying she had not seen it.

She said it would be "perfectly legitimate" for the Quebec government to use the notwithstanding clause to enact the charter should it be found to contravene the Canadian Charter of Rights and Freedoms.

In her commentary piece, Ms. Arbour appeared to allude to her former colleague's view on religion as solely an internal matter. "Freedom of religion means nothing if it is completely internalized and therefore almost never threatened," she wrote.

She urged Quebeckers not to succumb to "the song of the siren [that] evokes the nostalgic image of a homogeneous Catholic lay society, where 'our' religious symbols seem harmless because we no longer believe in them, having emptied them of their meaning."