Over the last couple of months, some pretty awful stories have come out about teachers in public schools in and around Montreal bullying and proselytizing students and colleagues, holding prayer sessions in classrooms, not teaching sex ed, preventing girls from taking part in sports, and generally running these schools as if they were religious ― specifically, fanatically Muslim ― ones. This is stuff is, of course, illegal, not merely awful, but has been going for years in some cases, and there are suspicions, how reasonable I couldn’t tell, that what has come out so far is nothing like the whole story. Something must be done. Banning prayers in public spaces such as parks and streets is something, right? Therefore, says Quebec Premier François Legault, it must be done.
For the record, Mr Legault is also talking about doing something to sort out the schools. It’s not really clear what. He’s only been premier for six years, after all, so I guess that’s not enough time to get to the issue of fanatics taking over, especially when the government has had more pressing matters to deal with ― like banning hijab-wearing women from teaching. Who could have thunk that the problem is not what is on a person’s head but in it, and that menfolk can be trouble too? You’ve got to cut the fellows some slack. Anyway, stopping people doing illegal stuff is hard: see how we’re all doing about stopping governments enacting blatantly unconstitutional legislation.
Because of course a ban on public prayer would be unconstitutional. That it violates the freedom of religion protected both by the Canadian Charter of Rights and Freedoms and Quebec’s own Charter of Human Rights and Freedoms should go without saying. Apparently it doesn’t quite, because a particularly clever law professor has suggested that “if [the ban is] neutral in its approach to public religious expression then I’m not sure why it shouldn’t pass Charter scrutiny”. You might think that, by definition, a ban on x isn’t neutral in its approach to x, but that’s because you’re not a clever law professor, for whom equal hostility, and indeed equal oppression, is a species of neutrality. It might be a little surprising, given the politics of this particular professor, to see him endorse this approach to religious freedom, but for more than a few people on the political left rights are indeed reducible to issues of non-discrimination, and liberty just isn’t an important consideration.
Fortunately, that is not how freedom of religion actually works. Yes, discrimination between different religious groups is wrong. For that matter, so is discrimination between the religious and the non-religious, which a ban on public prayer ― and not on comparable non-religious gatherings in the same places ― also amounts to. But a deprivation of liberty, in this case a liberty to worship, is a wrong in its own right, even if imposed on everyone with scrupulous equality. It needs to be justified, and vibes or incompatibility with the aesthetic preferences of the ministry aren’t a valid justification for restricting constitutional rights.
Even Mr. Legault understands this, which is why, “[w]hen questioned about the constitutionality of banning public prayer, he said the government is ‘looking at all possibilities, including the use of the notwithstanding clause’”. I hope this provision’s defenders recognize that it is being invoked here as a get-out-of-the-constitution-free card, and not, as they are wont to proclaim, as the way for a legislature to engage in good faith constitutional interpretation independent of that conducted by the courts. As I’ve written before, I don’t think this is an apt description of what went on in other, perhaps slightly more defensible cases. But be that as it may, in seeking to have its citizens divest themselves of their religious convictions, Quebec is ― again ― ripping its own mask off.
However, in this instance, the “notwithstanding clause” is not the end of the constitutional analysis. Division of powers is relevant too. To explain why, I proceed on the assumption that the anti-prayer legislation envisioned by Mr. Legault would apply broadly, including for example to public parks where other gatherings of a size comparable to prayers are and would still be allowed. A narrow statute targeting at gatherings that block or impede traffic on public streets would be a different matter.
The leading case on the division of powers and religious freedom is Saumur v City of Quebec, [1953] 2 SCR 299, ― one of those old decisions the Chief Justice pooh-poohed earlier this year. I discussed it length here, when Quebec was considering legislating a “Charter of Quebec Values”, which would eventually evolve into the still-disgraceful, but somewhat narrower Act respecting the laicity of the state ― a.k.a. Quebec’s anti-hijab dress code. Here is a translation of my summary of Saumur:
In short, four judges found that provincial legislatures could not enact laws which, in pith and substance, aimed at restricting religious freedom, which is no part of “civil rights” within the meaning of s 92(13) [of the Constitution Act, 1867], against three who did not. However, five judges found that provinces could enact laws that were by virtue of a different head of power even if these had incidental effects on religious freedom.
And here is what I said about its ongoing relevance, and that of the other so-called “implied Bill of Rights” cases:
For one thing, the Canadian Charter‘s entrenchment might seem to have deprived [this theory] of its raison d’être. For another, in Dupond v City of Montreal, [1978] 2 SCR 770, Justice Beetz for the majority of the Supreme Court seems [to have] rejected the Saumur plurality’s approach that made religious freedom a single “matter” subject to Parliament’s criminal law power.
However, Dupond did not officially overturn Saumur and other “implied Bill of Rights” cases. On the contrary, Justice Beetz stressed that the by-law at issue in Dupond did not “interfer[e] with freedom of religion, of the press or of speech … in such a way as to bring the matter within the criminal law power of Parliament” . (795) Dupond seems consistent with, at least, the majority theory in Saumur, according to which a provincial law can have incidental effects on religious freedom. Moreover, in Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3, Chief Justice Lamer referred to the “implied Bill of Rights” theory and the case law that gave rise to it with apparent approval. [102-103]
I would now add that the trend, however deplorable, towards accepting overlapping jurisdictional areas in the name of cooperative federalism lends further support to the view that incidental effects of provincial legislation are acceptable. But that does not undermine the narrow, yet important, point that laws that are in pith and substance concerned with religion rather than some other, validly provincial, matter fall within the scope of Parliament’s criminal law power, as indeed Justice Beetz implies in Dupond.
And a ban on public prayer is indubitably in pith and substance a law meant to curtail religion. This is where the difference between a broad ban and a law specifically targeting street traffic, for example, is important. Provinces (and municipalities) can regulate traffic, as they do when they enact highway codes or municipal by-laws that set speed limits for different neighbourhoods, for example. And if a by-law or statute that is generally directed at controlling traffic thereby limits or prevents street prayer, that’s an incidental effect permitted under Dupond. Ditto for a law that regulates municipal parks in general terms, unusual though that might be for a provincial legislature to enact. But a law that doesn’t regulate a particular space qua such space, but prayer qua prayer, is not just incidentally affecting religion. And, fortunately for the lawyers who will challenge a prayer ban the day it goes into effect, Mr. Legault seems very clear that his objection is not to any traffic or disturbance issues: “he doesn’t want to see people praying ‘in public parks or public streets’”. Dupond will not save him.
Quebec’s defenders get very worked up when anyone dares to suggest that its much-vaunted uniqueness has a dark side, be it corruption or hostility to minorities. And sometimes ― sometimes ― they have a point. A man convicted for silent prayer on the street? That’s happened in the UK, though I’m not sure it was lawful. Having government schools taken over by teachers with views wildly outside the mainstream who abuse their positions to indoctrinate children? Happens in Toronto too. That the teachers in question are delusional wokeists in one case and religious fanatics in the other is a distinction without a difference, especially given the tendency of both these groups to revere the same bloody murderers. Maybe Messrs Legault and Ford can compare notes on how not to run a school system. (Better yet, they should get the government out of yet another business it is manifestly incompetent at running.)
But time and time again Quebec manages to respond to its problems in uniquely ugly ways. Doug Ford’s government is no stranger to legislating badly and sometimes in glaringly unconstitutional fashion. But when it expands its political censorship regime without bothering to give a reason, or conscripts gas stations into its propaganda war with the federal government, it is not targeting ― repeatedly ― a uniquely reviled minority. You’ve got at least to give them that. I have argued here that the debate about whether Quebec’s dress-code legislation was racist was a side show, because that law’s illiberalism is enough to condemn it. I stand by that view. And I think that bans on religious clothing and public prayer are worse from a purely libertarian perspective than legislation that censors labour unions or compels the speech of gas stations ― which is not an excuse for those things, obviously. But, all that said, I don’t think libertarians should avert their eyes from Quebec’s choice of targets of its illiberalism. It is its own special kind of awful.