We are a group of academics and professionals from the legal, philosophical and journalistic fields, joined by citizens of all backgrounds and origins. We count among us both separatists and federalists, as well as others with no firm position on Quebec’s constitutional future.
It is with great concern that we write these words to denounce the Parti Québécois government’s proposed Quebec Charter of Values (formerly known as the Secularism Charter). The outline of the proposed Charter of Values was announced during the last election campaign and reiterated through carefully orchestrated leaks to the media, before being officially announced by Minister Bernard Drainville. The Charter of Values would seek to define “clear” guidelines governing requests for religious accommodation in the workplace, to guarantee the neutrality of the State by banning employees from wearing “conspicuous” religious symbols, and to do no less than to restore “social peace”.
From the outset, the fact that the government considers a handful of isolated cases of requests for accommodation in the workplace as indicative of a social crisis speaks volumes about the work accomplished by some of the province’s most prominent media columnists. Explosive and populist headlines, sweeping and judgmental commentaries and superficial analyses have marked Quebec’s media landscape since the emergence of the public debate on religious accommodation. Tabloids and television news networks have oversimplified the debate, continuously portraying Montreal as besieged, inundated by unreasonable requests for accommodation from intransigent immigrants. Over the years, they have instilled a genuine fear for the survival of the Quebecois identity in many of our fellow citizens. It is with regret that we observe that our government seeks to exploit this fear for electoral purposes.
We strongly denounce the use by our government of a handful of anecdotal, sensationalized incidents as justification to deny our most vulnerable citizens some of their most fundamental rights. This manifesto seeks to explain to our fellow citizens and decision-makers the reasons for our objections.
It is probably not a coincidence that the government has chosen to rename its Secularism Charter, opting instead to name it the Quebec Charter of Values. Indeed, the use of the term “secularism” to describe such a project must have appeared incongruous, even to government bigwigs. In brief, the Charter of Values would seek to ban government employees from wearing conspicuous religious symbols, in an attempt to guarantee the appearance of neutrality and impartiality of the State. However, the crucifix hanging above the Speaker’s chair in the National Assembly, the very chamber in which laws are passed, would remain.
Mr. Drainville has explained that the crucifix was a historical symbol, representing our heritage, rather than a religious one. However, all religious symbols are rooted in history; it is for this reason that believers ascribe so much importance to them. In short, these proposed measures give the impression of a two-tiered secularism in which the religious symbols of the majority are celebrated, even in the inner sanctum of our parliamentary democracy, while the religious symbols of minorities are banned as a threat to our values. As a result, symbols of minority beliefs are stigmatized.
From the outset, the proposed Charter of Values raises several issues which are, by their very nature, intractable ones. First, what constitutes a conspicuous symbol? Is the kirpan, a religious symbol that is invisible since worn under clothing, to be considered a conspicuous symbol? What about a crucifix worn under clothing? Is it permissible to wear a shirt with a cross printed on it? Will all scarves used to conceal hair be considered religious symbols? How long must a beard be in order to be considered a religious symbol? And who will establish the religious character of a piece of fabric?
Moreover, Minister Drainville incorrectly claims that there are no clear guidelines on dealing with religious accommodation, which according to him creates a moral obligation for the State to legislate in order to clarify the process. In reality, for an accommodation to be granted, there must be (1) a sincere religious belief, (2) a real violation of the right of freedom of religion, and (3) a proposed accommodation that does not impose an undue restriction of the rights of others. Rather than a need to legislate and clarify existing guidelines, the need we see is a pressing one for education. For instance, the Commission des droits de la personne et des droits de la jeunesse could publish an educational guide for the benefit of concerned managers. One thing is certain: the addition of certain conditions, creating a heavier burden for those requesting accommodation, will do nothing to make the debate simpler or clearer. Instead, the addition of these conditions will necessarily be submitted to the constitutional oversight of the Courts, which will needlessly monopolize time and money, all in order to add “clear guidelines” to those that already exist and work.
We also wish to denounce the misleading association made by some commentators between Canadian multiculturalism and respect for religious minorities. Far from being a Canadian invention, freedom of religion has been protected in a variety of ways in most democratic countries since the second half of the twentieth century. For instance, Quebec itself passed legislation on the subject even before the federal government did by adopting its own Charter of Rights and Freedoms in 1975, seven years before the Canadian Charter of Rights and Freedoms was adopted. Moreover, the application of the Quebec Charter of Rights is broader than its federal counterpart, as it regulates the rapport between rights in the private sphere, which the Canadian Charter of Rights does not. This means that Quebec has historically chosen to give additional protection to vulnerable groups, including religious minorities. And it has nothing to do with Pierre Elliott Trudeau!
II. Exclusionary effect
We hope that the government’s objective in this endeavour is not to exclude thousands of our fellow citizens from employment within the public sector. Yet, under the guise of promoting the neutrality of the State, the prohibition of religious symbols would, in fact, be expected to exclude citizens who find themselves unable to choose between the requirements of their conscience and those of their job. It is precisely to avoid this kind of dilemma that our Charters of rights have protected freedom of conscience and religion for over thirty years.
One of the urgent problems we face in terms of integration is the staggeringly high unemployment rate among Quebec immigrants. A ban on religious symbols in public service, schools and daycare centers would only worsen the problem by further excluding immigrants from the Quebec labour market. In this regard, the ban would contribute to increase the vulnerability of women who wear the hijab and exacerbate inequalities between men and women, particularly in terms of access to employment. It is therefore to be expected that this Charter of Values, proffered as a tool to help achieve gender equality, would have the opposite effect.
Furthermore, the demagoguery and populism espoused by some commentators and co-opted by some politicians only serves to reinforce exclusion. For instance, when Minister Drainville states that the Charter of Values will mean an end to “free passes”, or when the government endorses the President of the Quebec Soccer Federation’s statement to the effect that Sikhs who wish to wear their turbans should simply “play in their own backyards,” existing prejudices against religious minorities are reinforced, as is the impression shared by certain Quebecers that to accommodate a group of individuals in order to foster integration is to grant a privilege. Worse yet, in an interview on RDI’s current events program, 24 heures en 60 minutes, broadcast on August 23, 2013, Minister Drainville gave the example of the YMCA windows being tinted at the request of Hasidic Jews to justify the urgency of the intervention. However, that anecdotal event has nothing to do with the concept of reasonable accommodation as outlined and applied under our Charters of rights. The same can be said of the well-publicized anecdote of a sugar shack meal which was interrupted by a Muslim prayer, or the one about the removal of Christmas trees from public spaces. Recent statements by the Minister are therefore cause for extreme concern, as they seem to confirm that the measures put forward by the government are based on stereotypes and unreliable anecdotal evidence rather than factual analysis.
With this draft Charter of Values, the Parti Québécois fulfills its shift from a civic or liberal nationalism towards an exclusionary one, espousing policies based on rejection and isolation. Ironically, by demanding that some Quebecers choose between their Quebecois identity and their own fundamental rights, the Parti Québécois is at great risk of weakening the Quebecois identity rather than strengthening it.
III. Fear of the other
The Quebec Charter of Values proposes an exclusionist concept of secularism in the name of a common identity. Although the question of identity in Quebec is a serious issue deserving of our attention, a discussion of identity also requires that the lines of communication and dialogue remain open to all Quebecers. The question of identity must also raise the correlated question of citizenship, as any democratic debate must take into consideration the moral and legal equality of all citizens within the democracy. What are the criteria for membership in a political community: ethnic affiliation, linguistic affiliation, cultural affiliation, religious affiliation, civic affiliation? If we resist the temptation to demonize the defenders of this conception of secularism by charging them with racist and xenophobic intentions (because doing so only leads to polarizing the debate and curtailing the opportunity for a real exchange), it remains that the Charter of Values may result in a form of political xenophobia. One can understand the original intention behind the government’s project: to make public space devoid of any particular religious bias. However, the Charter of Values reflects a misunderstanding and a poor targeting of the fundamental issues of a political – not metaphysical – notion of secularism. Debates surrounding religious beliefs are unsolvable, and a democratic society characterized by the free exercise of reason should include the legal and political protection of the freedom of conscience and religious diversity. We can only aspire to a political secularism that expresses itself not physically, but in the spirit of secularism which should guide the exercise of our functions in the public sphere. Any attempt to make cultural and religious affiliations invisible is a naive and illusory attempt to deny the inescapable fact of pluralism within our open societies. Such an approach is all the more naïve, seeing as some of us bear our cultural, ethnic and religious differences in our facial features and the colour of our skin (many East Asians are Buddhists, for example). The real test for secularism is the acceptance of both visible differences and the need for consensus on the importance of tolerance and impartiality, which should govern our interactions while respecting our differences.
With regards to the argument of gender equality, extremely important debates should definitely take place in the public sphere in order to promote and protect women’s rights in the society of Quebec. However, the linkage being made by the government between the concepts of secularism and equality leads to problematic interpretations. Banning religious symbols and namely, let’s face it, the veil worn by certain women in public violates a set of fundamental democratic principles linked to individual rights, the freedom of conscience and religion, and minority rights. The application of the Quebec Charter of Values would result in the imposition of an undue burden… upon women. In this light, some might consider the government’s notion of secularism as being, in essence, much more sexist, occidentalist and paternalistic than it would appear at first glance. Many feminist voices, including those who supported the position held by the Fédération des femmes du Québec in the context of the Bouchard-Taylor commission, attest to the fact that the battle for women’s rights must not be fought at the expense of freedom of belief. Not only must we respect the autonomy of women in terms of their religious beliefs and their moral and ethical rectitude with regards to practicing their various professions and exercising their public functions, but if any doubts remain in the minds of some as to the kinds of pernicious discrimination that might cause women harm, it should be pointed out that coercive measures preventing women from visibly expressing their religious beliefs is not necessarily more important or more effective in promoting gender equality than addressing the social determinants that beget constraints limiting women’s freedom. In other words, it could be that equal opportunity, equal access to education, equal socio-economic standards of living, the equality of means of expression and the equality of the options made available to all in a democratic society are in fact what a just society should strive to provide through public policies in the name of gender equality.
IV. Slippery slope
In addition to the above, there is fact: any attempt to prioritize certain civil liberties is the perfect recipe for a predictable failure. Fundamental rights are, by definition, fundamental. They must, by force of circumstance, reign atop the hierarchy of constitutional order. Consequently, any modulation or prioritization scheme affecting these rights requires both societal consensus and a clearly identified, transcendent reason. One has to admit that the proposed Charter meets none of these conditions.
Take, for instance, Minister Drainville’s latest pet subject: the paramount importance of gender equality, which is, according to the Minister, a Quebecois value in need of protection. Is the Minister aware that Article 28 of the Canadian Charter of Rights and Article 50.1 of the Quebec Charter of Rights both already protect this very same gender equality? Is he not aware of the predominant nature of this provision in any application of multiculturalism, be it theoretical or practical? Would Minister Drainville then care to explain how the banning of religious symbols from the public sector achieves the desired equality?
Let’s admit it: the government’s current exercise is clearly a red herring, and not a very subtle one. It is but an excuse to impose certain values and a certain concept of religious practice, necessarily those of an artificial majority, all at the expense of minorities’ various fundamental rights. And this is precisely where the problem lies.
In fact, the very essence of any charter of rights is to protect the rights of vulnerable minorities from the diktat of the majority. It is what the community of nations hoped for in the adoption of the Universal Declaration of Human Rights. It is also what all Western legislatures aspired to achieve by entrenching these principles in their constitutions or quasi-constitutional laws, these principles being of general consensus throughout the international community.
Let us therefore remember that any changes to these legal texts are not to be approached lightly. The trivialization of the violation of certain individual rights, especially to serve an electoral agenda, carries within itself the seed of future slippages. It is quite easy to see this kind of populist exercise for what it is; what is more difficult is to predict the extent of the damage it will cause.
Following the unveiling of the proposed Quebec Charter of Values and the various reactions to it, we recognize that there is a certain malaise among the citizens of Quebec, with some voices calling for “clear guidelines” and better protection for Quebec’s culture and identity. However, we believe that these issues need not be addressed by an oppressive legal framework whose impact on the civil liberties of minorities, and thus to the rights of all, could be devastating.
Guidelines on accommodation already exist. We need only make them more publicly known and accessible, so that administrators and citizens feel sufficiently equipped to accommodate the needs of minorities while not placing an undue burden on the majority. In terms of culture and identity, Quebec may continue to celebrate its authenticity through a rich culture protected by an integration model that is tried, tested and true. The concern expressed over the survival and continued flourishing of Quebec’s identity only confirms the value of investing in culture and stresses the importance of teaching history in schools, so that future generations may feel a strong sense of identity that has evolved in the face of adversity. We believe that the Charter of the French Language and the Quebec Charter of Rights are necessary and sufficient tools to protect Quebecois values.
Furthermore, the proposed Charter of Values would force minorities to choose between their conscience and their survival. Never in history has exclusion in this form been a part of Quebecois values. Quebec has for long been a warm and welcoming land where each person could contribute to our great social tapestry. We believe that it is through greater social diversity, not by ostracizing certain individuals, that we can continue to live in harmony. Quebec identity is not built upon the rejection of the Other.
We therefore urge the government to review its position on the draft Charter of Values, a charter that could have irreversible consequences for the rights of minorities and, thereby, for justice and social peace. We also invite our fellow citizens to demand more of our government, to show it that it may not simply fabricate imaginary crises in which it presents itself as a savior, that it should instead focus on and address the issues that truly threaten our social fabric, such as the economy, employment, culture, justice and education.
It is tempting to accept a simple solution to a complex problem. We urge our fellow citizens to resist being seduced by populist proposals responding to unfounded fears, and to educate themselves on the potential consequences of such proposals. Above all, we urge the government to abandon any project that would increase the vulnerability of a segment of the population and erode the fundamental rights on which social peace, which is so dear to Quebecers, is based.
RÉMI BOURGET – Lawyer and blogger for FaitsEtCauses.com; he was a spokesperson for lawyers opposed to Bill 78 in the Spring of 2012;
FREDERIC BÉRARD – Constitutional lawyer and political scientist;
RYOA CHUNG – Associate Professor, Department of Philosophy, Université de Montréal;
JUDITH Lussier – Columnist.