Pierre BOSSET Université du Québec à Montréal Seminar, Faculty of Law Universidad de Málaga 6 de marzo 2015

 What are the legal/policy approaches to religious diversity in Canada?  Successes and current debates/challenges  Are there lessons to be learned from Canada, when lawyers debate religious diversity and tolerance? 2

1. Background on Canadian diversity 2. Religious tolerance: human rights concepts and policy in Canada 3. Issues and debates 4. Conclusion: what’s in it for Europe? 3

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Source: National Household Survey,

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WeeklyMonthlyOnce a year NeverTOTAL Canada20%9%49%22%100% Protestants (conservative) 58%7%27%8% 100% Protestants (mainstream) 15%12%54%19% 100% Catholics (outside Québec) 32%10%41%17% 100% Catholics (Québec) 20%8%66%6% 100% Other religions7%12%54%27% 100% No religion< 1% 37%63% 100% Source: Bibby, Project Canada

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Supreme Court of Canada, Advisory Opinion on Secession of Québec (1998): ◦ Democracy ◦ Rule of law ◦ Federalism ◦ Rights of minorities 9

1. Freedom of religion 2. State neutrality as corollary of religious freedom 3. Multiculturalism as interpretive principle 4. Individual accommodation of diversity as corollary of non-discrimination 10

 Canadian Charter of Rights and Freedoms, s. 3  Protects not only belief, but also manifestation of belief: SCC, 1985 ( R. v. Big M Drug Mart )  Liberal paradigm: no need to conform to religious authority – individual sincerity prevails ◦ SCC, 2004 ( Amselem v. Syndicat Northcrest ) – Court accepts individual belief, against rabbi’s opinion 11

 “ No state religion in Canada ”: SCC, 1955 ( Chaput v. Romain )  Freedom of religion requires the State to be religiously neutral: ◦ SCC, 1985 ( R. v. Big M Drug Mart )…  … although Canada is “ founded upon principles that recognize the supremacy of God ” (preamble of Canadian Charter of Rights) 12

 State may not dictate citizens how to behave based on religious norms (e.g., Sunday observance: Big M Drug Mart )  Neutrality towards religions does not mean ignorance of religions: ◦ Courts may enforce private contracts containing religious standards (e.g., Jewish divorce: SCC, Bruker v. Marcovitz (2007) ◦ State may teach facts about religions in public schools: SCC, S.L. v. Commission scolaire des Chênes (2012):  “ Exposing children to a comprehensive presentation of various religions without forcing the children to join them does not constitute an indoctrination of students” 13

 Official state policy in Canada (since 1971): ◦ “It is hereby declared to be the policy of the Government of Canada to… (b) recognize and promote the understanding that multiculturalism is a fundamental characteristic of the Canadian heritage and identity… (e) ensure that all individuals receive equal treatment and equal protection under the law, while respecting and valuing their diversity…” Canadian Multiculturalism Act, s. 3 14

 Constitutional principle of interpretation (since 1982)  “ This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians” :  article 27, Canadian Charter of Rights and Freedoms 15

 Religious freedom ◦ Multani case (SCC, 2006):  Sikh kirpan in school  Safety concerns?  No evidence of risk  Prohibition disproportionate  Court allows kirpan as long as worn securely  “An absolute prohibition would stifle the promotion of values such as multiculturalism…” 16

 Equality sometimes requires differential treatment: Aristotle  Canadian antidiscrimination law requires “reasonable accommodation” of differences: SCC, O’Malley (1985): ◦ Court allows Seventh-Day Adventist not to work after sunset on Fridays ◦ Granted on case-by-case basis 17

 Religious clothing, accessories  Public schools: prayer rooms  Prisons: kosher/halal meals  Universities: different exam days for individual religious observance  etc. 18 Royal Canadian Mounted Police

AccommodationUndue Hardship Costs Conduct of Operations SafetyRights of OthersEquality Freedom of Conscience Freedom of ReligionDignity 19

 No accommodation requirement for laws; only general principle of proportionality must be respected: ◦ “Where the validity of a law of general application is at stake, the doctrine of reasonable accommodation is not an appropriate substitute for [a proportionality analysis]”:  SCC, Alberta v. Hutterian Brethren of Wilson Colony (2009) 20

 Canadian human rights concepts for dealing with religious diversity: settled, proven  Liberal paradigm, substantive concept of equality dominant  Principle of multicultural interpretation of rights provides framework 21

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1. Is individual accommodation out of control?  Unreasonable demands?  Equality between women/men?  Social cohesion?  Separation of Church and State? 2. What place for religion in law, state institutions, public sphere? 23

 Polygamy (upcoming Supreme Court case)  Ethics and Religious Culture curriculum in private religious schools (upcoming Supreme Court case)  Prayer in municipal town meetings (upcoming Supreme Court case)  Crucifix in Parliament  Civil servants wearing religious clothing/accessories 24

 Québec’s own history with religion – Catholic past  Québec’s “Quiet Revolution” (1960s) – Church lost influence  Unsolved question of Québec-Canada relationship  Competing models: – Canadian Multiculturalism vs Québec Interculturalism  Influence of French republican model ( laïcité ) & Civil Law culture  Québec controversies are officially acknowledged, publicly debated 25

 The Bouchard-Taylor Commission “on Accommodation Practices Related to Cultural Differences” ( ): ◦ : media in Québec reported cases of “unreasonable” religious accommodation ◦ Public opinion worried: separation between Church/State; gender equality; conflict with “majority rights” 26

 Accommodation crisis: only a “crisis in perception”  Employers, public institutions need better, clearer guidelines for granting/refusing accommodation  Individual accommodation does not conflict with separation of Church/State, gender equality, “rights of majority” 27

 Canada’s principle of neutrality towards religions : unchallenged  But meaning of neutrality is still being discussed: “inclusive” or “strict” neutrality?  Is religion “religious” or “heritage”? 28

 Endorsed “open” secularism (accepting individual accommodation in public sphere)  Recommended White Paper on secularism ( laïcité ) 29

 Québec Parliament passed motion affirming that “crucifix is here to stay”  2013 Charter of Québec Values contained two controversial elements: ◦ Religious heritage to be protected ◦ Agents of the State should not wear “conspicuous religious signs” - includes university professors, doctors, nurses, daycare workers, etc. 30

AllowedNot allowed Source: Government of Québec,

 Republican secularists  “Ethnic nationalist” pro-independence movement  Part of feminist movement  Some civil servants unions  Rural areas  Older population

 “Civic nationalist” pro-independence movement  “Postcolonial” feminists  Montréal-based unions  Québec Human Rights Commission; Québec Bar  Academics  Anglophones, minorities

 Muslim women: private discrimination/harassment increasing

 PQ government ran in 2014 General Elections hoping to win majority thanks to support for charter  Apparent support for charter did not translate into votes; PQ suffered worst defeat since 1970, lost power to Liberals  Charter abandoned (in its present form) by Parti Québécois

 “Terrorism”, “fundamentalism”, “religious orthodoxy”: political discourse blurs distinctions  Fear of terrorism fuels support for repressive measures (e.g., against freedom of speech)  Canadian central government has also joined bandwagon of “identity politics” and “values”

 Political: ◦ New Québec Liberal government will propose (June 2015) new law on State religious neutrality  Law is expected to include:  Principle of neutrality  Some limits on reasonable accommodation  Ban on receiving government services with face covered

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 Growing social diversity in all Western societies (cultural, religious, ethnic)  Common issues: religious instruction, symbols, clothing, State attitude towards religions, religion as heritage?  Human rights also a shared heritage 39

 No colonial past  Historical minorities  Immigration a defining feature of national identity  Different constitutional structure (federal State)  Specific, North American legal approach to discrimination 40

 Legal concepts are open, flexible, allow for creativity (e.g., reasonable accommodation, inclusive secularism)  Legal cultures sometimes matter  Instrumentalization of human rights must be resisted 41

¡Gracias! Merci! Thank you! Pierre BOSSET, Département des sciences juridiques, Faculté de science politique et de droit, Université du Québec à Montréal 42