By: BATOUL HREICHE
F.M., who wanted to remain anonymous, is a Muslim Canadian woman fearing for her future.
She is a public sector employee in the Quebec city of Brossard who emigrated to Canada from Algeria 28 years ago. As part of her commitment to her faith, she wears a headscarf. Suddenly, she was told that the only home she knows might no longer allow her to perform her job while wearing a religious symbol. She will be forced to decide between her religious pledge to modesty and the employment she relies on to support her family.
“I’m scared of losing my job,” she said. “I also don’t want my two little girls to grow up in a society where others see them as pariahs for practising their religion publicly. It’s not fair.”
The governing party in Quebec, the Parti Québécois, has proposed to amend the Quebec Charter of Human Rights and Freedoms into the Quebec Charter of Values, a decision that would ban “overt and conspicuous religious symbols” from the public sector. The Quebec Charter is not a constitutional document and can be amended like any legislation. The amendment would prohibit all public sector employees in Quebec from showing any religious affiliation. This will affect any Muslim, Sikh or Jewish headdress, such as a hijab, a turban and a yarmulke. Christians will only be permitted to wear small crucifixes that are not visible or “overly large.”
The PQ claims their aim is to lead a state “that treats everyone the same.” However, experts in the field of law say the enactment of such a law would be deemed unconstitutional by courts.
“It would never withstand Charter scrutiny,” said Natasha Bakht, a law professor at the University of Ottawa, at a panel discussion held by Carleton University Sept. 24 to discuss the proposal. “It would in all likelihood be found contrary to sections 2a and 15, freedom of religion and equality under the Canadian Charter of Rights and Freedoms,” she said.
If Quebec passes the legislation, and if the province’s courts uphold the proposal, its constitutionality can be challenged at the federal level at the Supreme Court of Canada or, if it comes into effect, someone who is no longer able to work as a public servant, such as F.M., can also challenge it. She can take the legislation to the courts herself and argue that it is violating her religious freedom, her equality rights and her equal access to employment.
The Supreme Court of Canada will test the constitutionality of the legislation by determining if an infringement to the Charter of Rights and Freedoms is sufficiently justified, and if there is compelling evidence that demonstrates that rights must be compromised for the greater good of society. The government must also reach its objective by causing the least infringement on the right or freedom in question.
The document released by the PQ claims that the proposal is an answer to the religious accommodation cases that created “profound discomfort in Quebec.” Cara Faith Zwibel, director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, said discomfort is “not a good enough reason to violate people’s rights,” adding that the proposal is not compliant with Canada’s Charter.
“The only way to justify requiring public servants to remove any sort of religious gear is if there’s compelling evidence that it’s affecting their ability to do their job or that it’s affecting the public in some way,” said Zwibel. “Time and time again, courts have said that if you’re going to violate rights, you need a good reason and it must be minimally intrusive.”
“I don’t think the proposal meets any of those requirements,” she said.
In 1995, the famous Grant v. Canada case sought to ban the wearing of religious signs such as the turban as part of the RCMP uniform. The court held that the turban does not affect or infringe upon those who do not wear one and that “the only action demanded from the member of the public is to observe the officer’s religious affiliation.”
In an interview, Bakht said the courts have consistently affirmed that freedom of religion is essentially about “being able to live your life, wearing your symbol and practising your faith without fear of any kind of repercussions.”
In a 2004 case called Syndicat Nothcrest v. Amselem, the Supreme Court ruled that condominium bylaws which prevented orthodox Jews from setting up “succahs” or temporary dwellings on their balconies for a religious holiday, violated the guarantee of freedom of religion under section 3 of Quebec’s Charter of Human Rights and Freedoms.
A more recent case is R v. N.S, a case about a Muslim Canadian woman who was given the right to keep her face veil on, also known as “niqab,” while testifying in court. In 2012, the Supreme Court of Canada ruled that a woman cannot be denied the right to cover her face in a court room trial, but that its use will have to be determined on a case-by-case basis. The Court stated that “the Canadian approach in the last 60 years to potential conflicts between freedom of religion and other values has been to respect the individual’s religious belief and accommodate it if at all possible.”
At the panel, Bakht said religious accommodation cases emphasize the importance of evidence when it comes to limiting religious rights.
“These cases function as a true statement to our traditions and values including an emphasis on sufficiency of proof when the state attempts to infringe on the rights and freedoms of minorities, and an assumption that religious accommodation has significant social value,” she said.
Since its implementation in 1975, the Quebec Charter has guaranteed Quebec citizens the fundamental freedom of religion, which is emphasized in several of the province’s religious cases. Quebec’s Human Rights Commission has opposed their government’s proposal, with its chairman, Jacques Fremont, calling it “the most radical proposal modifying the Charter since its adoption.” Legal experts believe the Quebec courts will also see the proposal as a violation to their values.
“When you look at the Quebec Charter of Human Rights and Freedoms as it currently stands, I think that is the best document for determining what Quebec’s values are,” said Bakht. “I think that the Quebec courts are going to say this proposed charter of values is in violation of our document.”
Quebec’s Court of Appeal recently allowed Saguenay Mayor Jean Tremblay to continue praying before council meetings and a crucifix to remain hanging in the chambers, after an atheist citizen claimed that the crucifix and the prayers infringed on his freedom of conscience. The Court said that the case “…brings to the fore the difficult and delicate question of the state’s religious neutrality” and that neutrality does not mean “that society be cleansed of all denominational reality.”
The alleged “neutrality” of the proposed charter of values is also being questioned, considering the crucifix will continue hanging in the National Assembly, which is viewed as a conspicuous symbol.
“If the real concern here is appearances of partiality towards one religious group or another, it makes no sense to me that a large conspicuous symbol will still hang in the place where laws are debated and passed,” said Zwibel.
If the reason behind the proposed charter of values is intolerance of religion or religious minorities, Bakht said it would “undoubtedly” violate both the Canadian Charter and the Quebec Charter.
“This proposal is going to taint Quebec,” said Bakht.