11 September 2013

Quebec’s secular charter is clearly unconstitutional, but could still become law - The Globe and Mail

Quebec’s secular charter is clearly unconstitutional, but could still become law - The Globe and Mail

By contrast, the PQ argues that preventing public servants from exercising religious freedom at work is part of a broader secularism or “state neutrality” with respect to the state’s role vis-a-vis religion. This is a perversion of the principle of the separation of church and state, which is normally regarded as preventing government from imposing particular religious doctrines on citizens (such as requiring children to say the Lord’s Prayer at school). Instead, the PQ government proposes to strip citizens of any overt religious identification when working in the public sector. That is a far cry from a “neutral” state objective.

As an entirely symbolic enterprise, the legislation should fail on the first step of the judicial test for determining whether an infringement of the Charter of Rights and Freedoms is “reasonable in a democratic society,” which states that the government requires a substantial and pressing objective when it seeks to limit a right. In a case on prisoner voting rights, the Supreme Court majority made it clear that objectives which are symbolic in nature are “problematic” and noted that a legislature “cannot use lofty objectives to shield legislation from Charter scrutiny.”

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