Controversial Bill 21 demands irreligious uniformity, opposite of neutrality | Derek Ross and Robert Reynolds
Friday, June 14, 2019 @ 12:01 PM | By Derek Ross and Robert Reynolds
For many believers, religious symbols are not a matter of choice but an essential act of worship and religious expression, compelled by sincerely and deeply held convictions. Bill 21 forces those believers to choose between their faith and their jobs. That is not a true choice at all. Rather, it is an effective ban from public employment.
Thus, while the legislation purports to be advancing religious neutrality, it is promoting the exact opposite: a public square which is hostile, not neutral, toward religion. This is unacceptable in a free and democratic society.
As others have observed, the invocation of the notwithstanding clause does not render this approach any less offensive, nor assure the bill’s legality. The Charter is neither the source of nor basis for fundamental rights — it affirms and recognizes them and commits Canada’s governments to respect and protect them. But there are anterior and higher sources of truth and rights than those found in the Charter — this is affirmed in the Charter’s preamble itself, and in Canadian jurisprudence.
Religious freedom in Quebec and the rest of Canada was recognized long before the Charter. As Supreme Court Justice Ivan Rand declared in Saumur v. Quebec (City)  2 S.C.R. 299, freedom of religion is one of the “original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.”
Similarly, several Quebec Appeal Court justices affirmed in Chabot v. School Commissioners of Lamorandiere (1957) that freedom of religion and conscience are “anterior to positive law,” “find their existence in the very nature of man,” are entrenched in “natural law, first of all our laws,” “cannot be taken away” and “must prevail should they conflict with the provisions of positive law.”
Just as state actors could not “override this basic principle of natural law” in Chabot, three decades prior to the Charter, they cannot do so now. Indeed, nothing in the Charter — including s. 33 — “extends the legislative powers” of any government body in Canada (per s. 31).
The notwithstanding clause also does not affect s. 26’s affirmation that the Charter “shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.” This includes the inviolable rights of conscience and religious liberty, which pre-date the Charter and “find their source in natural law” (Justice Paul Casey in Chabot).
In short, freedom of religion does not rise and fall with the Charter. Every person has an inherent and inalienable right to freedom of religion, which not even the notwithstanding clause can eradicate.
International human rights instruments, including those by which the government of Quebec has declared itself to be bound, also protect freedom of religion. The International Covenant on Civil and Political Rights guarantees freedom of religion, including the right to manifest religion or belief “in worship, observance, practice and teaching” (Article 18), as well as freedom from discrimination based on one’s religion (Article 26). The International Covenant on Economic, Social and Cultural Rights protects the right to work “without discrimination of any kind as to … religion” and affirms that the state must “take appropriate steps to safeguard this right” (Articles 2(2), 6).
These rights are not unlimited, but any attempt to restrict them must be justified, and no compelling justification has been demonstrated here. According to supporters of Bill 21, the alleged harm that arises from the wearing of religious symbols is that it detracts from the appearance that public officials are neutral. But no one is harmed by the awareness that a public official happens to be religious (or non-religious for that matter). As the Supreme Court of Canada has stressed, neutrality is required of the state, not individuals. State neutrality exists not to coerce irreligious uniformity, but to protect religious diversity.
Particularly concerning for members of the legal profession is Bill 21’s application to prosecutors and other lawyers who contract with, or are under the authority of, a government body (Schedule II, ss. 6-8). For many lawyers, their faith is what compels them to seek justice and serve their clients and communities. It would be a profound loss to the public interest and common good if, by simply identifying with the religion underlying those commitments, lawyers of faith were denied the opportunity to participate equally in the administration of justice.
In Mouvement laïque québécois v. Saguenay (City)  S.C.J. No. 16, the Supreme Court explained that state neutrality prohibits the government from using its powers “to promote the participation of certain believers or non-believers in public life to the detriment of others.” Yet Bill 21 does precisely that. It creates a “preferential space” for those with certain beliefs (or non-beliefs), and effectively bans from that space those with other beliefs.
This is not a neutral policy, but an anti-religious one.
Derek Ross is the executive director and general counsel for Christian Legal Fellowship (CLF), Canada’s national association of Christian lawyers. Robert Reynolds is a Montreal lawyer and past president of CLF. This article is a condensed version of CLF’s written submission to Quebec’s legislative committee studying Bill 21. The full submission, endorsed by 116 lawyers, law students and retired jurists, is available in French and English and on CLF’s website.
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