Thursday, September 12, 2013

Quebec Values? No, just politics of separatism

The Quebec government plans to forbid the wearing of religious garb in government facilities. There will be time limited exceptions for religious hospitals or schools that elect to opt out. Absent such exception someone wearing a kippah (and perhaps a sheitel) could neither work for or receive services at a Quebec hospital. The expressed purpose of the legislation is to protect Quebec values and traditions. Put differently, the legislation is designed to make religious minorities as invisible as possible.

Apparently the proposed legislation is popular and at least one civil service union is supporting it.

But popularity is not the measure of a law.

In Canada there is a constitutionally protected "freedom of conscience and religion". That right is subject to reasonable limits - and the courts have held those limits need to be narrow and focused on a significant and proper governmental objective. It seems most unlikely that the protection of Quebec values would be sufficient to justify, say, banning a priest from wearing a clerical collar during hospital visits.

But, as several commentators have noted, the Roman Catholic priest is not the object of the legislation. The legislation is squarely directed at Muslims and more specifically Muslim women who cover their face in public; other religious groups, Orthodox Jews among them, are merely collateral damage.

Canadian courts have required, in some circumstances, someone with religious scruples to uncover their face. But those circumstances are narrow and deal with especially pressing matters -- testimony in court for example. It is simply inconceivable that the proposed legislation would be found constitutional.

And that may be the very point.

Quebec's government is separatist. But Quebec itself seems fairly comfortable as a part of Canada. In order to bring Quebec to separate some threat to the continuation of the French Canadian nation would be helpful. Now in reality a few dozen burkas pose no threat of any sort to Quebec's essential culture - but perhaps the burkas can be painted as such a threat.

The proposed legislation is preposterous. It is clearly intended to make religious minorities in Quebec feel unwelcome. As Justin Trudeau pointed out it makes Quebec a laughing stock. If passed it will be ruled unconstitutional - there can be little doubt of that.

But then the Quebec government can claim "we tried to protect Quebec culture and the Feds stopped us". And by so doing the separatists emphasize a wedge between Quebec and the Rest of Canada.

James Morton
Of the Law Societies of Upper Canada and Nunavut

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