Benoît Pelletier. The author is a lawyer emeritus, has a doctorate in law and is a distinguished professor at the Faculty of Law of the University of Ottawa.

March 5, 2024, published in Le Devoir

The recent ruling by the Quebec Court of Appeal marked an important victory for the Quebec government in its defence of Bill 21 on the secular nature of the State. Nevertheless, the question of the extent to which this law complies with the charters remains virtually unanswered, given the impact and scope of the powers of derogation provided for in both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.

This judgment also leaves unresolved to a large extent the question of what meaning should be given to the secular nature of the State and how freedom of conscience and religion should be interpreted today.

In the 1985 Supreme Court of Canada decision in Big M Drug Mart, Chief Justice Brian Dickson said that freedom of religion consisted of “the right to believe what one pleases in religious matters, the right to profess religious beliefs openly without fear of hindrance or reprisal, and the right to manifest one’s religious beliefs by practising and worshipping them or by teaching and propagating them […]”.

In the same vein, the Supreme Court has repeatedly affirmed that religious tolerance is a crucial value of Canadian society and that adopting an accommodation measure demonstrates the importance our society places on protecting religious freedom and respecting minorities.

Restrictions

However, according to the Supreme Court, freedom of religion cannot be seen as an absolute. In particular, it is limited by the requirements of public safety, order, health and morals, as well as the fundamental rights and freedoms of others. Restrictions on religious freedom are therefore possible, but they must be justified (subject to the use of a power of derogation).

As far as we are concerned, there can be no doubt that freedom of religion and, by extension, freedom of conscience are fundamental aspects of the lives of individuals. Similarly, there can be no doubt that Quebec and Canadian societies as a whole are deeply attached to the values of accommodation, tolerance and respect for diversity.

In fact, neither multiculturalism nor interculturalism seeks, by its very nature, to restrict individuals’ freedom of religion. However, this same freedom must be reconciled with the secularity of the State, i.e. with its religious neutrality. In other words, the State must not be seen to favour one religion in particular and, more importantly, there must be a separation between religion and the State. The State is not at liberty to manifest, let alone favour, any particular religious belief. It must be independent of religions, denominations and religious beliefs.

Compromise

In practice, freedom of conscience and religion is based on a kind of compromise between the right of every person to embrace and profess his or her own beliefs and opinions – including the right to hold none – and the principle of the separation of Church and State. In adopting Bill 21, the Quebec authorities took note of this premise. They also took note of the fact that the religious neutrality of the State must be manifested not only in concrete and direct terms, but also in appearance.

If it is true that freedom of religion guarantees that everyone is free to profess openly and to manifest, without undue interference on the part of the State, the beliefs and opinions that their conscience dictates, it is equally true that the State must observe a genuine and well-felt neutrality with regard to the various religions.

Ultimately, the religious neutrality of the State benefits the whole of society, including religious minorities. It is a necessary consequence of freedom of religion and conscience. Thanks to this neutrality, public institutions offer everyone a neutral space where the principle of individual equality and the absence of discrimination prevail. If the State were to favour one religion at the expense of others, it would create an inequality that would conflict with freedom of religion within society.

Identity

In Quebec itself, secularism is an issue that raises questions of identity, freedom and the coexistence of personal opinions in a highly democratic and plural society. More precisely, the Quebec State is adopting a balancing act, seeking the right compromise between individual rights and collective interests, while seeking to preserve its fundamental values and its own identity within Canada.

The role of the Quebec State in the context of secularism is therefore to reconcile the safeguarding of individual rights with the maintenance of collective values or principles. The challenge for the Quebec state is to navigate with finesse between these two poles, while affirming and preserving the secular character of the state.

Far from being a simple ideological debate, the issue of secularism in Quebec is part of an evolving dynamic, reflecting both its unique history and the contemporary challenges of a pluralist society. The Act respecting the secular nature of the State, while a significant step forward, is not an end in itself. Rather, it is a milestone in the ongoing quest for a balance between respect for individual rights and the preservation of a society that aims to be neutral and orderly.

In seeking to define and apply its own vision of secularism, Quebec is confronting not only its own internal challenges, but also those posed by the broader Canadian context. It is through this delicate balancing act that Quebec can hope to offer a model of secularism that, while faithful to certain relatively consensual principles, is as inclusive and respectful as possible of the diversity that characterises modern Quebec society.

Translated by DeepL, verified by Michel Virard