Montreal·Analysis

The big question about democracy lurking behind Quebec's secularism bill

Amid the theatrics at the first week of hearings into Quebec's secularism bill, the stakes of the whole exercise became clear in one dramatic, but little-noticed exchange.

Will the will of the majority or the rights of the minority prevail?

The Coalition Avenir Québec government is using the hearings to muster a variety of views on its proposal to ban some civil service workers from wearing religious symbols. Philosopher Charles Taylor is seen here greeted by Immigration Minister Simon Jolin-Barrette at his appearance last week before the committee. (Jacques Boissinot/The Canadian Press)

There were a couple of Islamophobic outbursts, a bit of verbal jousting between the minister and his critics, and a visit from the two wise men of religious accommodation.

But amid the theatrics of the first week of hearings into the Quebec government's secularism bill, the stakes of the whole exercise became clear in one dramatic — but little-noticed — exchange.

That conversation, between an even-tempered law professor and the bill's sponsor, exposed a big question behind the legislation: just how supreme is the will of the people? 

The Coalition Avenir Québec government is, of course, using the hearings to muster a variety of views on its proposal to ban some civil-service workers from wearing religious symbols.

It's a necessary step in any bill's passage. The CAQ, though, has given the distinct impression it would like to dispatch with the whole process as quickly as possible.

Only six days of hearings, after all, have been set aside to discuss Bill 21's 3,600-word draft. Premier François Legault wants the whole thing sorted within the next month.

'This bill will allow us to turn the page,' Immigration Minister Simon Jolin-Barrette, the bill's sponsor, said as he opened the hearings last week. (Jonathan Montpetit/CBC)

Never mind that governments have been wrestling with the issue of religious symbols for more than 10 years. "This bill will allow us to turn the page," Immigration Minister Simon Jolin-Barrette, the bill's sponsor, said as he opened the hearings last week.

But in the way they've worded the bill the government has, perhaps inadvertently, also opened up a debate about the very nature of modern democracy.

Will of the majority or minority rights?

The terms of this other debate are a little different from the question of whether Bill 21 is the right way to protect the secular nature of the Quebec government.

This other debate is about who gets to rule in a democracy, and about whether that power can be checked by people who are not elected.

Bill 21, like the Parti Québécois's ill-fated Charter of Values, seeks to impose limits on what religious symbols civil servants can wear while at work — limits that do not currently exist.

So, for example, women who wear the hijab are currently able to teach in public schools. They will lose that freedom if the bill passes. (The bill does contain a narrow grandfather clause.)

The bill has drawn widespread criticism in Quebec, especially from minority groups. (Graham Hughes/Canadian Press)

But unlike the Charter of Values, or any of the other previous attempts to legislate secularism in Quebec, the government has inserted a notwithstanding clause in the bill.

Doing so, the government believes, will prevent the eventual law from being challenged on grounds that it violates fundamental rights listed in either the Quebec Charter of Human Rights and Freedoms or the Canadian Charter of Rights and Freedoms.

Let's stop here to get an initial glimpse of the battle lines.

On the one hand, you have a majority government trying to execute what it believes to be the will of its voters.

On the other hand, you have charters designed to protect the rights of the minority. And with them, unelected judges tasked with ensuring the charters are respected.

In the case of Bill 21, the desires of an elected majority could potentially be checked by unelected judges.

To prevent that from happening, to ensure the supremacy of elected officials, the CAQ is invoking the notwithstanding clause.

The minister and the professor

This debate played itself out on Wednesday, when Louis-Philippe Lampron, a law professor at l'Université Laval, testified at the hearings.

He appeared just after the sociologist Gérard Bouchard. Bouchard's co-author of the landmark 2008 study on reasonable accommodations, Charles Taylor, made his appearance the day before.

While Bill 21 does not target one religion specifically, Charles Taylor argues it must be understood in the context of a society "full of Islamophobia." 0:59

So the committee room was relatively empty when Lampron showed up. That's too bad. He and Jolin-Barrette, as if playing roles scripted for them, proceeded to embody the tension between majority rule and minority rights.

The exchange began with Jolin-Barrette asking Lampron about his views on the nothwithstanding clause.

Lampron replied that there is nothing wrong with the clause per se. His issue is with it being used preemptively, before a law could even be challenged in court.

"We are at the heart here of what is supposed to be protected by human rights and freedoms, that is to say, the protection of minority groups against potential abuses by the majority," Lampron said of Bill 21.

That seems to take Jolin-Barrette aback. The minister gets defensive. Bill 21 doesn't single out any particular religion, he says; its measures apply equally to Christians, Muslims, Jews and Sikhs.

"Why are you mentioning the impact on minorities, when it affects the majority as much as the minority," Jolin-Barrette asks the law professor.

Lampron, unfazed, argues there is a difference between direct and indirect discrimination.

'Whether it is the Quebec charter or the Canadian charter, you can't avoid the obligation of having rights and freedoms examined by an independent third party,' law professor Louis-Philippe Lampron said during his appearance before the committee. (Alice Chiche/Radio-Canada)

Sure, he says, the law may make no mention of a particular religion and so appears to apply evenly to everyone across the board. But look at the "net effect" of the ban:

"There is a category of the population that … won't have to do anything to respect [the legislation] — the majority of the Quebec population, which is Christian, atheist or agnostic," Lampron said.

The burden of the law falls on minority groups, Lampron added, they are the ones who will be disadvantaged. "And that's enough to demonstrate the existence of a charter right violation."

Their exchange sidetracks momentarily, but Jolin-Barrette eventually circles back to the question of charter rights.

He suggests to Lampron the problem is the Canadian charter, and the multicultural values it conveys.

(The backstory here is the belief — widespread in Quebec, not just within the CAQ — that federal multiculturalism policies water down the province's ability to preserve its distinct francophone identity.)

What about, Jolin-Barrette says, giving more power to the Quebec Charter of Human Rights?

The question is not about which charter is better for Quebec, Lampron replies. The question is whether we are a society that respects human rights, or only pays lip service to them.

If it's the former, then it shouldn't be up the government to decide when it has struck the right balance between the desires of the majority and the rights of the minority.

"Whether it is the Quebec charter or the Canadian charter, you can't avoid the obligation of having rights and freedoms examined by an independent third party," Lampron said.

Gérard Bouchard, co-author of the Bouchard-Taylor report, appeared before the committee on Wednesday. (Jonathan Montpetit/CBC)

To the law professor, the minister of the majority replies:

"Yes, in fact, it is a choice. We consider that Quebec society has to, through its elected representatives, decide on the relationship between religions and the state."

This, of course, isn't the only pressing question being addressed at the hearings. But it does suggest one reason why Quebecers may want to pay attention when they resume Tuesday.

The majority government they elected is in the process of outlining just how far it thinks its power reaches.

About the Author

Jonathan Montpetit is a journalist with CBC Montreal.

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