I. From Charters to Chartism: a Dispossession of the Political……………………p. 3
A. The Americanization of Canadian Law
B. The Shift from Individual to Collective Rights
C. A Radically Different Criticism
II. A Narrative: Hérouxville (Québec), January-February 2007……………………p .6
An Unexpected Rise to Fame
A. Noteworthy Reactions
B. The State’s Answer: Appointing the Bouchard/Taylor Commission
III. Religious Pluralism in Canada: a Fact since 1774………………………………p. 14
A. From the Treaty of Paris (1763) to the Confederation (1867)
B. The British North America Act of 1867
C. A Tale of One Law (1971) and Two Charters (1975 and 1982)
D. The Notion of Passive Citizenship
E. The Closing Down of Religious Courts in Ontario
IV. The Republican Rule: a Paradigm neither Liberal nor Illiberal…………………p. 24
A. An Ancient Source of Secularism: the Athenian Polity
1. Draco’s Reforms 621-620 B.C.
2. Solon’s Reforms 594-560 B.C.
3. Cleisthenes’ Reforms 550-500 B.C.
B. Laïcité:
1. As Opposed to Religious Plurality
2. Limits and Contradictions
V. Back to Secularism: Some Perspectives………………………………………….p. 36
Bibliographie……………………………………………………………………………. p. 38
Recommandations soumises à la Commission…………………………………...p. 41
«I heartily accept the motto, --“That government is best which governs least;” and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe,—“That government is best which governs not at all”—(…)»
Henry David Thoreau, On the Duty of Civil Disobedience
I. From Charters to Chartism: a dispossession of the political
Two charters of rights may be too many for a society with a strong historical identity. The National Assembly of Québec has adopted its own Charte des droits et libertés de la personne as early as 1975, under the liberal government of Robert Bourassa. With its 49 articles, this body of hyper-legislation is more extensive in scope than the Canadian Charter of Rights and Freedoms which became effective as Part One of the Canada Act of 1982 . Though restricted to provincial fields of jurisdiction, the Québec charter covers not only human, civil and political rights (sections 1-38 ), but economic and social rights as well (sections 39-49). It deals with the relationship between State and citizens, as does the Canadian charter; it further regulates some specific relations between private persons which the Canadian charter does not. In its 34 sections, the Canadian charter deals with fundamental freedoms (section 2 ), democratic rights, mobility rights, legal rights, equality rights (sections 3-15), and linguistic rights (sections 16-23).
A. The Americanization of Canadian Law
It is generally understood that the adoption of such charters brings about an Americanization of the political regime. What is meant by this is that the sense of belonging relates individuals to a set of timeless ethical values (without context) , whereas ordinary laws relate citizens to the specific struggles, circumstances and compromises which constitute the history of a nation and point to the current phase it has reached in a dynamic process. A charter produces an ethicization of law as the expression of the Good or the Virtuous with a kind of transcendent flavour that sets its values above criticism. According to the American consensus which develops Thoreau’s motto, divergence (not difference) should be encouraged: it is held as the mark of tolerance, the supreme political virtue. In Canada nowadays, the only acceptable discussion of the quasi dogmas decreed by the charters seems to be confined to that of limiting its implementation. It seems impossible to reconsider the decrees themselves. Therefore, in Canadian law, there are only two avenues left to escape the rule of the charters: one is to use the infamous “Notwithstanding Clause” to bypass one of its articles temporarily (which obviously appears to be choosing vice over virtue); the other would be to abolish the charter, an option which Antonio Lamer now considers a possibility in the long term if the freedom of our Parliament is further threatened . How are the rights and liberties of a sovereign Parliament to be protected from the centrifugal forces of an extreme liberal individualism?
This Americanization also modifies the legal global picture and how society operates: such a charter edicts rights but does not define them, assigning this task to the courts and ultimately to judges who, in Canada, are not elected. Therefore, through an act of the Parliament (the adoption of the charter), it produces a limitation of the sovereignty of the same Parliament . This transfer of sovereignty is foreign to British law and to French civil law. Moreover, because it provides for such an overlapping of the judiciary and the legislative it constitutes a departure from the fundamental Modern principle of the division of powers.
The very function of the Canadian Charter of Rights and Freedoms is precisely to override all other past and future federal laws. It also overrides all provincial laws including the Québec charter, even in fields of exclusive provincial jurisdiction. As the former Chief Justice of the Supreme Court of Canada Antonio Lamer puts it, some judges resented the new duty of having to judge laws by declaring their conformity/conflict with the charter. They soon had to judge drafts of laws written so as to satisfy some implicit and remote effects of lists of items left open in the sections of the charter. A draft is abandoned if it does not pass the test of the Charter as interpreted by the Supreme Court, even when the original legislator is still in power and able to express the intentions and spirit behind a law or a section of the Charter. Such was the case with former Prime Minister Jean Chrétien during the first 20 years of the Canadian charter enforcement. The definition of marriage is a well-publicized case of this new function of the courts . The changes were introduced gradually. First, the Supreme Court added “sexual orientation” to the list of prohibited grounds for discrimination. Then, in 1999, it was considered (8 to 1) a simple application of this inclusion to recognize and include the right to alimony for homosexual partners. Finally, in 2004, the Supreme Court, consulted by the federal Minister of Justice Irwin Cotler on the draft of a bill concerning same sex marriage, delivered an imprimatur to it. The next step yet to be taken by the Supreme Court will be to decide whether or not the traditional definition of marriage goes against the federal charter.
The general result is that the fundamental separation of powers which defines democracy in the British regime is affected: the courts are called to exercise legislative power while the legislative body is being juridicized by the “tyranny” of the charter(s). Canadian citizens have not been consulted on these decisive issues. The slow drift toward the American legal system is becoming more apparent now than during the first fifteen years of public life under the charters. This progressive dispossession of legislative initiative is covered by the concept of “Chartism”.
B. The shift from individual to collective rights
The function of a charter of rights is to protect and defend individual liberties. It was conceived as the way to grant equality to physically disabled persons and to others whose particular needs could not be met by general regulation. But quite early in their respective lives, the Québec and Canadian charters were invoked to gain rights for minority groups. It was not done openly, as all of us remember. In the case of the turban accepted as an equivalent of the mandatory R.C.M.P. headwear, it was indirect, the Supreme Court refusing to reverse a de facto decision not to fire the police officer who was wearing his turban on the ground of an alleged religious obligation. The right to wear a kirpan knife in a public school was claimed for a boy by a particular Sikh family not representing anybody else. The same applies to the right to wear a headscarf at a Catholic private school granted to a girl represented by her parents on an individual basis, etc. The effect on public opinion is particularly strong when the Supreme Court reverses the unanimous ruling of a lower court such as the Québec Court of Appeal for the case of the kirpan, among others. It may operate as a foreign perspective disavowing historical compromises, delicate balances and fruitful debates. If democracy is defined primarily by public deliberative experience, then a society regulated by charters of rights does not meet this condition.
Such an argument points to two opposite conceptions of political freedom: either it is considered present in individuals as humans and just requires to be protected, or it is thought of as a difficult construct inherited from the citizens’ experience, one that requires conditions of exercise that the State must provide in order to improve, not shut down, public debate. The first view is the liberal view, the second is the republican.
Of course, the effects of charters-inspired court decisions (and non decisions) institute separate rights for several small segments of the population (or communities): we now face “multijuridicity” or “differentiated rights” within the same body politic. Some liberals (Will Kymlicka, Wayne Norman) and several communitarians (Charles Taylor) see in these results a democratic gain while others see only the pernicious effects of the charters in the sense that they were both unforeseen and unwanted --even counter-productive-- in terms of freedom. Is this the much-praised tolerance or is it Babel, the denial of the polity itself? The number of the claims directly invoking religious liberties is rising.
C. A Radically different Criticism
There are mainly three avenues to consider the matter of multiculturalism. The first asks: “What are the virtues of diversity?” and answers that it is an anthropological plus and an aesthetic bonus. The second asks: “On what ground are human rights to be legitimately limited?” and finds that they are sacred, ethically primordial and should have precedence on laws. The third avenue asks: “What is a political society?” and examines what multiculturalism means in it. I hold that the three are incommensurate: they will neither add nor intersect. Anthropology, ethics and politics have distinct epistemologies. I have chosen the third avenue.
I shall submit here that this third way of understanding freedom in the public sphere has received some credit in the history of Québec. Among other signs, the writer and film director Jacques Godbout published in Le Devoir an argued critique of the charters multicultural policies and their pernicious effects. “Le multiculturalisme est une politique généreuse devenue discriminatoire” . He pleads for the strict separation of the intimate realm of religious belief and the public common values of a given polity, in the best interest of all. While others wish to accomplish this through a Québec secular constitution, Godbout advocates the adoption of a third defensive charter: a Charte de la laïcité using a concept that I shall try to clarify. He expresses here the concern of a large group of citizens who do support the positions of le Mouvement laïque du Québec:
A “laïque” society --the one which we promote-- is one where religious liberty is the same for all. Above all, it is one where equal rights apply to all regardless of their faith. Finally, it is a society where one never has to reveal one’s beliefs to receive a benefit and where it is never necessary to inquire about anyone’s religion to grant the benefit in question.
But we should keep in mind that such a provincial charter would fail the test of the Canadian Charter of Rights and of its chapter on Multiculturalism. It would be nullified. Nevertheless, the idea raised interests and even passion. Jacques Godbout, a moderate federalist and liberal-party supporter was accused of intolerance, while others praised his ideas and a third group claimed that, had Québec declared its sovereignty, all this ridiculous waste of time would have been spared. To show that the Anglo-Canadian idea of a multi-confessional public space is not the same as the idea of laïcité which influences the debates in Québec, I propose to go from the particular to the general and back to the particular, on a path where the so-called “universal” is another name for a certain type of culture, a particular way to look at the whole.
Weimar ou l’hyperinflation du sens. Portraits et exils
