In Legault's Quebec, there's no room for religious expression, or diversity of thought

National Post, 03 May 2021

The distinct society only has room for a limited sort of distinctiveness.

As the charter’s fundamental freedoms take an extended pandemic sabbatical, it is noteworthy that the notwithstanding clause is hale, hearty and in rude health.

Quebec’s Superior Court ruled recently that Bill 21, the secularist law prohibiting public-sector workers from wearing religious symbols, was constitutional. More or less. Actually, both. More in some ways, less in others.

The law’s prohibition, which is aimed mostly at Muslim women but also applies to Jewish and Christian symbols, is a clear violation of religious liberty and equality rights. No one really disputes that. If you can wear a Montreal Canadiens cap but not a yarmulke, that is a prima facie violation of religious liberty and equality rights. Even if you believe the Habs generate religious fervour, it would still be an unlawful preference for one faith over another.

Hence the Quebec government invoked Section 33, the “notwithstanding clause,” in passing the bill. It would not have done so if it did not believe that the law restricted fundamental freedoms.

Section 33 permits a law to operate notwithstanding Section 2 — which delineates fundamental freedoms, including freedom of religion, conscience and expression — as well as sections 7-15, which include legal rights and equality rights.

Judge Marc-André Blanchard found Quebec’s invocation of the notwithstanding clause to be over-broad, but within its legitimate authority.

In an only in Canada twist, the judge ruled that part of the law was unconstitutional in regard to Montreal’s English language school board, because minority-language education rights are in Section 23, and not subject to the notwithstanding clause. So a teacher who wears a lapel pin of the Virgin Mary in Montreal’s historically Protestant English school board can become a principal, but a teacher in the historically Catholic French board can be fired for the same.

Also, the notwithstanding clause does not apply to Section 3 of the charter, which guarantees every citizen the right to vote and to stand for election. Therefore, Bill 21 is unconstitutional in regard to members of the National Assembly of Quebec. The very same members of the National Assembly who restrict the religious liberties of all Quebecers themselves cannot have their own religious liberties restricted. Amazing.

Premier François Legault said he was disappointed by the “illogical” ruling. There is a lack of logic, but not from the judge. He found that the law violates religious liberties. That’s not really in dispute. The whole point of the law was to restrict the freedom of Muslim women to appear religiously distinct in public. The distinct society only has room for a limited sort of distinctiveness.

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