The War of the Judges

Last week, Canadians were treated to the rarest of political treats: a public row between two former Supreme Court Justices.  Madame la Justice Arbour (1999-2004) and Madame Justice Claire L’Heureux Dubé (1987-2002) battled it out publicly over the question of whether the proposed Quebec “Secular Charter” was constitutional or not.

In an op-ed piece published in La Press, Louise Arbour excoriated the Charter and lamented the effects it was having on the delicate social fabric of Quebec society.  She didn’t mince words in her criticisms either, calling the Charter a violation of the right to freedom of religion, at the international, national and provincial levels.  She argued the idea that a person’s freedom of religion, should remain strictly private, would basically make the right meaningless as it would be never be contested.  She also likened the protection of human rights to using a metaphorical umbrella.  That is, they are only useful when rains.  In other words, the constitutions of both Canada and Quebec must now be invoked because the fundamental rights they guarantee are threatened.  She called it ‘odious’ that the supporters of the Charter would advance their agenda at the expense of some of the most marginalized people in our society, Muslim women, for whom integration will become even more difficult should the restrictions on public displays of their faith be imposed by law.

Arbour makes it clear that any references to French style secularism by proponents of the Charter ignores the North American reality of modern immigration policies and is completely misguided.  Finally, she nails the true motivation behind the bill, when she implores all Quebeckers to make the right political choice in the next election.  Though they may hide behind empty moralizing rhetoric, the PQ is clearly betting that the Charter will steal votes from both of their major rivals (particularly the CAQ) in their next election campaign, which now seems inevitable.

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Conversely, we have the testimony delivered to the Special Commission organized by the government to carry out a public consultation on Bill-60 (i.e. the “Secular Charter”) by one of Québec’s finest jurists and early legal feminist pioneers.  Madame L’Heureux Dubé begins by making the dubious argument that , in her view, religion is an “’internal commitment” and doesn’t need to be expressed publicly.  Got that Muslims, Sikhs, Jews and others who wear visible symbols of their faith in public places?  L’Heureux Dubé, as a secular, liberal, retired judge and old-school feminist understands your religious obligations better than you do!

L’Heureux Dubé then goes on to say that all public servant are sworn to be apolitical and that asking them to be bound by a similar duty not to express their faith at work, is no different.  Except, as a former Supreme Court Judge, she ought to know that this is quite a different matter.  It’s an essential component of the decisions of the Supreme Court’s reasonable accommodation cases that the issue often hinges on the subjective connection between the symbol in question and the persons religious beliefs.  That is, are the practices, such as wearing a ceremonial dagger (the Multani case) or the building of a Succha (Amselem case) perceived to be an integral part of the person’s faith?  If so, they must be accommodated.

Politics are not what the courts would consider ‘immutable characteristic.”  They are far more likely to evolve throughout a person’s life and can be altered more easily to adapt to workplace requirements.  Not to mention they are placed in fare less of an obligation than do religious convictions.  Nevertheless, the former judge does make a good point when she argues that the Supreme Court was divided along regional lines in the critical judgements with respect to freedom of religion, with Judges from Québec generally being at odds with their colleagues from the rest of Canada.  Rather oddly, though, L’Heureux Dubé claims not to be familiar with the op-ed put out by Arbour.  Astonishingly given that this is a woman who devoted her life to upholding the values enshrined in Charter of Freedoms and Religion. 

Mme. L’Heureux Dubé seems to be willing to disregard the constitution, at least in this once instance.  She actually suggests at one point, that the Quebec government could always exercise the Notwithstanding Clause, to make their “Secular Charter” immune from court challenges, on the grounds that it is a possible infringement of the guarantee of freedom of religion!

Perhaps the most egregious statement made by Mme. L’Heureux Dubé during her testimony was when she claimed that the public was not divided by the PQ’s Charter but rather had already been engaged in a heated and divisive debate on the subject of the proper place for religion in the public sphere.  And that Marois was actually doing us all a great favour by allowing for an outlet for people’s grievances on this issue.  In other words, all you religious minorities feeling oppressed right now by the political atmosphere in Quebec know who to thank for this.

The PQ’s Charter has been denounced, not just by former Judges like Mme. Arbour, but by constitutional law experts of all stripes including the Human Rights Commission of Quebec, eminent constitutional law professors like Daniel Weinstock and Hugo Cyr, prominent public intellectuals like Charles Taylor, and even many former PQ leaders.  Though Ms. L’Heureux Dubé’s testimony comes across as sincere, it was clearly designed to legitimize the wildly exaggerated “crisis” narrative being peddled by Minister Drainville in order to justify what is essentially a solution in search of a problem.  And she is clearly in the minority among her peers in thinking that the “Secular Charter” passes constitutional muster.

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Other articles by David DesBaillets

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Confessions of a lefty Jewish Canadian on Harper’s visit to Israel

Homeless problem in Montreal becomes political controversy after You Tube video goes viral

Follow David DesBaillets on twitter @DDesBaillets

 

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