Jean-Christophe Jasmin:

The debate on laïcité is so controversial in the Canadian context because it pits two distinct models for managing pluralism against each other. French republicanism and Anglo liberalism are rooted in different cultural and philosophical backgrounds, which explains how both sides of the debate often struggle to understand the other side’s point of view.

In this episode, we will summarize the differences between these two visions of pluralism and how they influence the debate on laïcité and religious pluralism in Quebec and English Canada.

Part 1. French Republicanism and Anglo Liberalism

Lisa Richmond:

The French and English worlds have markedly different visions of the place of the individual and of the community, which are informed by their respective religious traditions.

Jean-Christophe Jasmin:

France has a vision of society that tends to emphasize the common good over individualism. Freedom is achieved through institutions and society, not against them, and it is important that the individual respect the collective rules that determine life in the public sphere. This vision is consistant with the Catholic faith as shaped by an institution, the Church, which functions in a top-down manner.

Lisa Richmond:

By contrast, the Anglosphere, which has been shaped by Protestantism, typically emphasizes individual conscience over collective constraints. In the Protestant tradition, faith is a more interior matter, with less emphasis on shared public rituals and more emphasis on individual practices such as Bible reading and personal prayer. This creates a different vision of the individual and his or her place within the body of believers, in which individual freedoms are less prone to be limited in the name of the common good.

Jean-Christophe Jasmin:

A Supreme Court decision in 2004, known as Amselem, concerned a conflict in Montreal between Orthodox Jews who wanted to erect a sukkah, a temporary booth, on their condo balconies as part of their religious observance, and the condominium association, which asserted that these booths violated the condo bylaws that forbid “structures” on the balconies. Tasked with determining what a religious belief is, the Court deemed it to be a sincerely held individual belief, thus using a subjective rather than objective criterion (such as a belief that is tied to an established religious body, serving as an authority on the matter). As Julius Grey, who acted for the appellants in this case, said:

Julius Grey:

In Amselem they tried to argue that the Jewish religion doesn’t require a sukkah. And my answer is, it doesn’t matter whether the Jewish religion does or not, it’s whether the conscience of Mr. Amselem requires the presence of a sukkah.

Lisa Richmond:

This decision is coherent with the Anglo-Protestant vision, but can seem strange to the Franco-Catholic one. We spoke about the case with Stéphane Sérafin:

Jean-Christophe Jasmin:

It’s a very interesting case, too, because it seems to give a definition of religion that’s particular to Canada. I know of a case in France where, it was a similar case about the Orthodox Jewish person, and it was about, I think, the electronic system to enter the condominium complex. […] But in France, basically, they asked Jewish authorities about the practice: Is it reasonable? The private practice needed to be justified by some sort of religious authority. Whereas in France, in Canada, it seems that Amselem gives a new definition of religion. Could you expand on that and the consequences of that definition?

Stéphane Sérafin:

There’s a bit of that difference in the majority and dissenting views. The dissent in Amselm, without necessarily going as far as the French approach, which is the French, we could talk about how it relates to laïcité in a moment, but just that even the dissent in Amselm thought that the particular exercise of religion in this case was unreasonable. Without going so far as to think that you need a religious authority opining on this and saying that this is what the religious practice entails, there is an element of reasonableness involved. Just because you subjectively believe that this is what your practice requires you to do, does not mean that it’s a reasonable interpretation of what your religious practice should entail. This is already found in the dissent’s view. The majority instead just takes a purely subjective view of what religious practice is. If this is a sincerely held belief, that’s all that you really need to establish a claim to exercise a religious freedom.

And I mean, really, when you look at it, especially in contrast with France, there’s two conflicting, I think, religious cultures that are at play here. The French is much a model of French Catholicism. It reflects a certain understanding of religion that is informed by the history of French Catholicism. For people who don’t know this, French Catholicism is not just Roman Catholicism. And the Roman Catholicism is defined by hierarchy with the pope at the top and it’s a very, it’s an ecclesiastical religion. It has, you know, formal structure with bishops and the pope at the top. In that sense, there are officials that are supposed to rule on religious matters. But French Catholicism actually goes further, in that it’s instituted in the state capacity. There’s a tendency called Gallicanism, which was very prevalent in France prior to the French Revolution, which was basically the Church not only has its formal hierarchy in Rome but also there’s an established French Church that opines on official religious doctrine within the confines of the French state.

And this is the model that’s informing, I think, the way that the French, even today, even under official secularism and even under official laïcité, which France has had since the beginning of the 20th century, informs the way that they approach these religious freedom issues. If it’s not Roman Catholicism, it’s some other religion; we’re still looking for religious authorities to opine on what a proper expression of faith entails. And if you individually decide that this is what my faith entails, and you can’t back it up by an appeal to a religious authority, then that’s not going to be seen as a legitimate exercise of your faith.

Versus in the Canadian—I mean, the Americans have this to a certain extent too, but I think that you’re right that the Canadian model probably perhaps goes further. Very much influenced by, I want to say, a Protestant conception of religion. Religion is primarily a matter of private faith, private belief. You know, you’re saved through your personal faith, not your adherence to—. The classic distinction is “saved through faith, not works,” right? That’s how the Protestants traditionally understand it. It’s a question of your subjective, whatever your beliefs are, that’s what matters. That’s what faith is. It’s a private thing. It’s a subjective thing that is unique to you. And who am I, as, you know, someone who is not you, to dictate what your faith entails. And I think that’s, that’s the kind of perspective that is, is informing consciously or not, I don’t think it’s necessarily conscious, the approach that the Supreme Court is taking, for example, not just the Supreme Court, but the Supreme Court majority in Amselm would have taken.

Lisa Richmond:

This difference between French and English cultures affects not only one’s understanding of religious freedom but also one’s understanding of a closely related freedom, that of conscience.

Stéphane Sérafin:

From the standpoint of the typical Anglo-Canadian, if there was such a thing, but the quintessential Anglo-Canadian viewpoint would be something like, well, it’s my personal sense of right and wrong. And my personal sense of right and wrong entitles me to object to participation in even a legislative scheme, right? The legislation requires me to do something, but I think that’s against my conscience, so I have some opt-out rights.

Whereas in the French, Franco-Catholic, conception of conscience, conscience is more of an objectively measurable thing. So conscience is very much a feature of Catholic doctrine, for example, but conscience always means conscience in the sense of: yes, you have an innate sense of right or wrong, but it’s supposed to be oriented towards an objectively measurable sense of the good. Even if you personally disagree with this law, it doesn’t necessarily give you a status as a conscientious objector. You maybe are entitled to object, but only if your objection is rooted in some objectively demonstrable concept of the good. […]

And I think that definitely plays in the way that Quebec approaches these debates. If an individual who thinks, I have a religious duty to wear a headscarf, even when I’m teaching, Quebec society isn’t going to necessarily look on this, at least on its own, as something that is worth respecting. […]

Another example in a completely different context is we talk about the MAID thing, briefly, medical assistance and dying. Quebec has a very particular view on this, which is very much more pro medical assistance in dying than probably the rest of Canada. And there’s some decisions coming out of Quebec lower courts now about Catholic hospitals seeking exemptions from carrying out or participating in these procedures. And the answer that the courts are giving in a lot of cases is no, right? Because your individual conscience rights do not entitle you to disregard the law. The law is the ultimate measure of how we interact with each other in society. […]

The idea is, if your conscience is not your personal subjective thing, that you yourself have, that you’re entitled to assert against everybody else, but something that has to be manifested externally and has to be endorsed by some kind of authority, of course, the concern, the primary concern, is going to be with: What are the authorities putting forward as the proper view of right and wrong? So, in the absence of a possible reference to religious authorities to counter the authority of the state, what you’re basically left with is the authority of state officials.

Jean-Christophe Jasmin:

As Stéphane Sérafin is already noting here, these different religious visions have consequences for political philosophy. John Locke and Jean-Jacques Rousseau’s theories of the social contract reflect these differences.

Lisa Richmond:

John Locke’s Two Treatises on Government argues that natural rights come before the political order, and remain as a permanent standard and as a principle of protection against arbitrary authority. If the sovereign violates them, citizens have a right to revolt and are no longer bound to the political order.

Jean-Christophe Jasmin:

In Jean-Jacques Rousseau’s Social Contract, by contrast, once citizens enter the political community, they gain political freedom to orient the general will through democracy, and thus they must also submit to the general will, even if they personally disagree with the decision taken. The general will pursues the common good, and comes before individual rights.

Here is Guillaume Lamy:

Guillaume Lamy:

I can try to sum up this with two very famous philosophers. And the first, in the English, in French we say anglo-saxon, let’s say the English sphere, we have a very famous philosopher, it’s John Locke, who is maybe one of the first to talk about religious freedom in a marked way. He said, the faith is so important, we can’t impose, we cannot impose faith. It belongs to the deep, interior of everybody. So, we have to accept the difference. And from John Locke to John Rawls, we have a complete tree of philosophers that built up this large philosophy that we talk nowadays, that is “recognition.” And we have to base the justice in society in diversity. Social justice will be achieved through diversity.

And in the opposite family, there is another philosopher, very famous also, it’s Jean-Jacques Rousseau, with his concepts of social contract, and civic culture. And in this other part of the intelligence in the world, instead of betting on difference, we bet on what is common to everyone. That’s what I understand about French politics. When you talk about multiculturalism in France, they will say, No, because each time we accept to recognize diversity, we fragment the society a little bit more. From a scientific perspective, nobody can answer that kind of questions with certainty. These are school s of thought, and they have an heritage in different parts of the world. And outside of the English world, the French model is getting reproduced in Switzerland, Danish country, Netherlands, Belgium, and also in some cities in Spain they ban some type of religious symbols.

Part 2. Civil Law and Common Law

Lisa Richmond:

After New France fell to the British, the British parliament promulgated the Quebec Act in 1774. One of the things the Act provided for was the continuation of civil law, which New France had inherited from France. Quebec today continues to use civil law for private-law matters.

Jean-Christophe Jasmin:

French civil law and British common law have differences that mirror this persistent division between the place of the individual and that of the community, on a top-down versus bottom-up approach: Civil codes contain a comprehensive statement of rules. Many are framed as broad, general principles, to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they’re consistent.

Lisa Richmond:

Common law, by contrast, is not written down as legislation. Common law evolved into a system of rules based on precedent. Precedent guides judges in making later decisions in similar cases. The common law is not found in any code or body of legislation but only in past decisions. At the same time, it is flexible. It adapts to changing circumstances, because judges can announce new legal doctrines or change old ones. Stéphane Sérafin:

Stéphane Sérafin:

The French Civil Code is very—and the Quebec Civil Code drawing on the French tradition—is very cognizant of this notion of “public order.” So, l’ordre publique is the French expression for this. You’ll have all these rules, and it’s pretty explicit in some places in the Code that there are these rules that the parties, for example, in a contract, can decide to exclude them as they will. But there are other rules that are of public order. They’re imposed by the state. So the state legislates and has established certain mandatory rules that apply to all contracts of a particular type. Relationships between individuals too that are not contractual—so, what we call in common-law terms “tort law,” wrongful interactions, essentially—there’s a bigger role for this notion of public order in the way that Quebec civil law conceptualizes the relationship between individuals as well, even in non-contractual settings.

So there’s a standard, a general standard of fault that is applied to determine—so, I act in a way that is unreasonable, I am at fault, and if I, in doing so, cause an injury to another person (an injury being understood as a wrongful infringement of their rights), then some compensation is due. And this is all modulated through ideas of public order and the legitimate role of the state in regulating the interaction between individuals.

The common law has this too, but historically it’s underplayed by the idea that the judge is there to give effect to people’s rights once they’ve been infringed. These rights are not set out explicitly anywhere—that’s another big difference: the Code sets out explicitly what rights individuals have—the common law, you have to figure out what individuals’ rights are based on what the precedent is telling you, you can gain a cause of action. If I can successfully claim against somebody a defamation, it must mean therefore by implication that I have some kind of right to reputation. But it’s kind of amorphous. And the cultural attitude that evolves out of this is that people are assumed to be able to do what they want, they have this baseline freedom of action, absent some explicit precedent that constrains their freedom of action.

Lisa Richmond:

Stéphane Sérafin applied these differences to the Amselem case:

Stéphane Sérafin:

And so the majority in that case adopts what is, I think, a very common-law-centric approach. Religious freedom is presumed to be absolute, subject to the possibility of restricting it for legitimate purposes. And they adopt an approach which is very, very similar to the reasonable accommodations framework adopted in human-rights law for employment, in the employment context. And they found that it was not. There were other ways of accommodating them that could have been adopted than just outright banning the erection [of the sukkah]. Or there was an alternative that was proposed to just erecting a common booth for everybody. That was not adequate, according to the majority. So, very much this idea that you have this freedom, essentially unconstrained freedom, to do what you want, subject to a narrow possibility of state regulation.

Versus the dissenting judges in that case, who adopted a much more, I think, approach much more consistent with the Quebec Civil Code, or the general philosophy of the Quebec Civil Code, anyway, where this claim to, we have freedom of religion, yes, that is an important right that you have, but the right has to be reconciled with the competing rights of everyone else who lives within the condominium complex in question. And it’s the job of the authorities, so in this case,it would be the condominium board, or the equivalent under Quebec Civil Code, to establish reasonable rules that allow everyone to live together in relative harmony, that respects individual rights, the competing individual rights of everyone involved, as best as possible. And from the dissent’s perspective, the alternative that was offered here was not an unreasonable one. This was a reasonable way of allowing them to exercise their religion, their religious freedom, while also being cognizant of the competing rights of others who have to share that space and don’t necessarily share in that religious tradition.

Part 3. Implications for Pluralism

Jean-Christophe Jasmin:

These differences in the place of the state and the individual have consequences in the vision of French republicanism and Anglo liberalism regarding pluralism. The French model emphasizes assimilation to a common culture and set of rules. The Anglo model emphasizes recognition of particularisms as the way to integrate to the whole.

Lisa Richmond:

Earlier in this episode, Guillaume Lamy evoked the Anglo-American philosophy of “recognition.” Charles Taylor’s text The Politics of Recognition expresses this multiculturalist vision that is dominant in the Anglosphere, which relies on the public recognition of minority groups, not just individuals. He wrote, “There is a certain way of being human that is my way. I am called upon to live my life in this way, and not in imitation of anyone else’s life. But this notion gives a new importance to being true to myself. If I am not, I miss the point of my life; I miss what being human is for me. […] The thesis is that our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.”

Jean-Christophe Jasmin:

By contrast, Dominique Schnapper, a thinker of French republicanism and citizenship, emphasizes the importance of everyone subscribing to a common culture and common norms, without public recognition of minority groups as such. She said, “Any minority status that is recognized runs counter to the principle of democratic equality. […] French national integration is of a different kind. In particular, national policy continues to refuse to recognize the political representation of national groups as such. This is the most striking difference compared with the United States. […] Mobility and participation as individuals rather than as a community, the non-recognition of particular groups in the political sphere.”

Considering this divide on the importance of public recognition of particularisms for integration, we can understand how these two visions clash over the idea of banning religious symbols for representatives of state authority. The republican vision sees it as a form of neutrality and a way to integrate immigrants to the national culture, while the multiculturalist vision sees it as a form of exclusion.

Lisa Richmond:

We asked Guillaume Rousseau to situate the Quebec form of laïcité in relation to the Anglo and the French models.

Jean-Christophe Jasmin:

So Quebec laïcité seems to come in between these two worlds. So how would you say that it relates to both but distinguishes itself from both?

Guillaume Rousseau:

Yeah, I think you presented very well, because that’s the way I see it in terms of, sometimes I say the third way, meaning that in the Anglo-American world—and then again we could make a difference, United States, Canada, Great Britain, it’s not all the same—but if we talk about Canada and the United States, I think that it’s also influenced by multiculturalism and liberalism and individual rights. So that’s pretty much the centre of attention.

Where[as] in France it’s also about individual rights but also about the democracy and citizenship. Dominique Schnapper, a famous sociologist, puts it this way: She says that in the Anglo-American tradition, it’s mostly about individual rights, like being protected from the state, and in the French tradition, it’s mostly about being part of the state: You vote, you protest, you demonstrate, and then you are part of an election, as a citizen or as an elected official, and then there’s a law that is adopted, that in theory is a limit to your freedom of religion or whatever, but since you’ve been part of the process of adopting this law, then it doesn’t infringe on your freedom, because you are part of the democracy, the city, the city that has been at the origin of the norm.

So you see that it’s very different way of seeing citizenship. And again, I think that in Quebec, we are influenced by both of these civilizations, if I can use that word. So we’re looking for a third way. […] So we’re looking for a balance between these two ways of thinking.

Jean-Christophe Jasmin:

Okay, so we talked about how the law recognizes or confers collective rights to the Quebec nation. Now, what is the Quebec nation? Is it an ethnic group? Do we mean French Canadian or descendants of the first French Canadians? Are English Quebeckers part of the Quebec nation? Are Muslims part of the Quebec nation? What is the Quebec nation according to this law?

Guillaume Rousseau:

I know that there are perceptions. Some people think that it’s not inclusive, and so on. So I know that this perception exists, and I respect that. But I think it’s pretty clear, for those who adopted the law, for the National Assembly, it’s pretty clear that the nation of Quebec is everybody living in Quebec that has the right to vote. Basically, I think that would be it. It’s anybody that has the Canadian citizenship and has been in Quebec for six months or something like that, that has the right to vote. […]

But then at the same time, the law about the National Assembly, or Bill 21, also refers to history and culture and language. Basically, I think that we need to move forward from the dichotomy that there will be ethnic nations or civic nations. Like you must choose whether you’re only a French Canadian nation, with no place for immigrants or English-speaking people in the nation, or you are a civic nation, and it’s not about language, not about culture, it’s only—we’re all under the Quebec Charter of Human Rights and that’s why we are a nation. That’s not it. So these two notions, I think they’re artificial, they’re not relevant, they’re not relevant anymore, if maybe they have been in the past, for the notion of a ethnic French Canadian nation. Maybe a century ago it was relevant, it’s not nowadays. […]

So I think that Michel Seymour’s notion of a socio-political nation is pretty wise and fits well in the case of Quebec. It’s basically saying that there is a language—that there’s a Quebec nation, and the reason why there’s a Quebec nation is because of the French language. There’s no Ontarian nation, there’s no New Brunswick nation. So why do we call our province a nation? Because of the French language. But that doesn’t mean that it excludes Anglophone citizens, because what we’re saying is that French language is not the only language in Quebec, it’s the common language. Meaning by that, that it’s the only language that the school system will make sure that you learn, whether you go to French school, English school, you’ll learn some French. And if you’re coming as an immigrant, you’ll learn, you have the right to learn, French, and we’ll make sure that you have the opportunity to learn French. And of course then people can learn English in school or in different ways, but it’s not the focus of the state. […] And then there’s culture that comes with language, and the history that is different. Quebec’s history is different from those of other provinces of the rest of Canada. So we take that into account. But at the same time we say, well, at the end of the day, the National Assembly represents all those who have the right to vote in Quebec.

Jean-Christophe Jasmin:

And it’s in continuity with a Rousseau, Jean-Jacques Rousseau view of the body politic.

Guillaume Rousseau:

Exactly. So it’s a political nation, but it’s not only abstract, it’s not like we’re somewhere in the air and we are Québécois because there’s a National Assembly and we vote. There’s more than that. That’s the basic of it, but then there’s, we take into account the sociological reality that there is a French-speaking majority, and that means something, and that’s—.

And then there’s a link between the two. We mean that by that, Okay, the nation is everyone who has the right to vote. But then if you really want your vote to be meaningful, you need to master some French. Because if you only read the Gazette, maybe you’re not going to get all the information that you need to really vote as an informed citizen. So that’s why it’s both political and sociological, and we need not to oppose those two but you need to see that it’s logical and that it’s it re-enforces each other.

Part 4. Parliamentary Sovereignty and Judicial Review

Lisa Richmond:

When Bill 21 was signed into law, the Quebec government decided to use section 33 of the Canadian Constitution to protect the bill from judicial review. This ignited another debate on the use of the so-called “notwithstanding clause.” Section 33 of the Constitution states that “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” This declaration must be renewed every five years to be operational.

Jean-Christophe Jasmin:

Section 33 has its supporters and detractors. Quebec sees the use of section 33 as especially legitimate because it did not sign the 1982 Constitution put forward by Prime Minister Trudeau and still sees the Charter of Rights and Freedoms as detrimental to its autonomy. The notwithstanding clause thus appears as a last resort to protect the general will of Quebeckers from the decisions of (majority English) Canadian judges. Since 1982, in Quebec the clause has been used to shield laws related to national identity, namely, those protecting French and establishing laïcité, but also to laws promoting access to justice, treating prisoners fairly in the parole process, or putting forward affirmative action.

Ultimately, the debate around the use of section 33 raises the question of “who decides” in a parliamentary democracy such as ours. In this respect, the debate does not oppose the French and the Anglo models but rather the British principle of parliamentary sovereignty and the American tradition of judicial review. The British principle of parliamentary sovereignty “makes parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no parliament can pass laws that future parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”

Lisa Richmond:

American judicial review enshrines “the ability of the Court to declare a Legislative or Executive act in violation of the Constitution […]. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. […] Therefore, the Court has the final say over when a right is protected by the Constitution or when a Constitutional right is violated.”

Jean-Christophe Jasmin:

In the Canadian Constitution of 1867, Canada adopted the British model of parliamentary sovereignty. The Supreme Court played only a very limited role, settling jurisdictional disputes between the federal government and the provinces. In 1982, by introducing the Charter of Rights and Freedoms, Pierre Trudeau shifted the country toward an American-style system of judicial review. With the inclusion of section 33 in the Charter, Canada now has a hybrid model, since judicial review can occur but Parliament can also reaffirm its sovereignty.

We can thus see that the debate over Bill 21, and the use of section 33 to protect Parliamentary sovereignty and provincial autonomy, is not a debate that affects Quebec only. The Supreme Court will render its judgement before the end of 2026, and it will have consequences for the entire Canadian political system.

Lisa Richmond:

Here again is Stéphane Sérafin:

Stéphane Sérafin:

It is British parliamentary tradition, because that is the tradition that Quebec actually has. The Quebec National Assembly is governed by effectively a modified version of English parliamentary tradition. That said, I don’t know that that’s necessarily what’s being appealed to here, right? You need to understand that it’s called the National Assembly, l’Assemblée nationale, because it’s understood primarily as the vehicle for the will (reference to Rousseau earlier), the general will, of the Quebec people. And it’s no coincidence that the primary legislative assembly in France is also called l’Assemblée nationale. And that was a deliberate choice taken up at the beginning of the French Revolution. The story is that the Tiers-État, the third estate, proclaimed itself l’assemblée nationale as the embodiment of the will of the people in the Rousseauian sense, actually quite explicitly in that case. And so that’s probably, I think, primarily what’s being appealed to here. […]

The notwithstanding clause is interesting in this context because it was negotiated as a compromise by certain provincial premiers, most notably premiers of Alberta and Saskatchewan, who really wanted this in there as a kind of condition of going along with the broader Bill of Rights project. What it does, it was supposed to do anyway, was allow for Canada to have a compromise between the UK system of full parliamentary sovereignty and the American model of rights review. […]

Now, Quebec is interesting because, as you mentioned, Quebec did not actually sign on to this compromise, because, famously, René Levesque was betrayed at the last minute, and all the other nine premiers went along with the deal, but he did not. Quebec never signed on to the Constitution. Strictly from a legal perspective, the argument has always been, well, it doesn’t matter, Quebec is still bound to it, but it has given the use of section 33 an extra legitimacy in Quebec. Quebec politicians from all political parties, whether they’re federalists, sovereignists, or nationalists of the CAQ disposition, have all felt that they can use it. […] “If we’re going to be saddled with this, at least going to be using the tool that it gives us to restrict what judges can do under it” is I think a logic behind that.

Jean-Christophe Jasmin:

Charles Taylor does not support legislatures making pre-emptive use of the notwithstanding clause:

Charles Taylor:

So they not only evoked the notwithstanding clause, but they invoked it preemptively. They’re terrified. […] And if I had anything to propose, it would be that we forbid notwithstanding, overriding, secretly. That you have to allow the courts to decide, and then if you want to exercise the notwithstanding clause, you go ahead and exercise it.

Jean-Christophe Jasmin:

But that there should be a political cost, in a sense.

Charles Taylor:

Yeah. And the justification in terms of the whole rights tradition, in this case the Anglophone rights tradition, it goes back to the Magna Carta and so on, is that every citizen has the right to know whether this invocation is really violating the Charter or not. And there’s an attempt here to do something more than just override, there’s an attempt to keep people in the dark about the nature of this.

Part 5. The Future

Jean-Christophe Jasmin:

As we have seen, the debate on secularism that has been ongoing in Quebec for twenty years is not without consequences for Canada. Constitutional issues like provincial autonomy and parliamentary sovereignty are at stake, but so is the model of integration that the country wishes to follow in the future.

Lisa Richmond:

Since October 7, 2023, the rise of anti-Semitism and interfaith tensions have brought the issue of coexistence between different religious and cultural groups back to the forefront, along with the role that the state should play in maintaining public order.

Jean-Christophe Jasmin:

When asked in a poll, 46 percent of Canadians from coast to coast said they supported Bill 21. It is therefore wrong and simplistic to interpret this as a clash between the values of Quebec and Canada, as if they were two monolithic blocs.

Lisa Richmond:

As in many areas, it is therefore possible that this debate, which began in Quebec, will one day spread to English Canada. It will be all the more important to understand the philosophical, historical, and political underpinnings of the debate on laïcité in order to address this issue in the future.

Jean-Christophe Jasmin:

Stéphane Sérafin:

Stéphane Sérafin:

What people need to understand is that Quebec’s Bill 21, that Act respecting the laïcité of the state, is not just a law. It is a law that is understood to reflect certain fundamental Quebec values that are distinct from the values of the rest of Canada. And all the things that are cited in that preamble, even the civil law tradition, we’ve talked about this a bit earlier, the way that the civil law tradition conceives of the role of the state in mediating rights even between persons.

And this is primarily what the dispute is about, really. It’s fundamentally not a question of constitutional law in the strict sense, but really how do you reconcile pluralism, different people with different values, living in the same space. Quebec has a distinct answer to this, in line with its civil law tradition, in line also with its particular relationship to religion, historical relationship to religion. […] Religion and the state were intertwined. To become secular in this conception of things is not to give pride of place to individual ways of practicing religion. […] To be secular means to free the state from religious influence, actively. […]

Lisa Richmond:

With regard to legislation or regulation that tells people, here’s who we are as a nation or here are our values, and we require that you also, at least in the public sphere, embody those things or comply with them, do you think Quebec is on its own path in this regard, or do you think it’s a forerunner, that the rest of Canada will reach that point as well? For perhaps different reasons, perhaps same reasons, but what do you think of that?

Stéphane Sérafin:

I think Quebec is ahead of the rest of the country in grappling with these issues. I think that for all sorts of reasons, people in the rest of Canada have wanted to ignore these conversations. And we can understand why. They’re difficult conversations to have. How does one establish, especially if you have extreme levels of pluralism like we do now in Canada, how would you even begin to grapple with the idea of a shared common culture? […]

That said, I don’t think that the particular answers that Quebec has given to this are going to necessarily be emulated elsewhere. If you see other parts of the country adopting, for example, restrictions on what can be worn by public officers, officeholders, it’s going to be, I think, on much more pragmatic grounds than Quebec has done. […] Is this something that is impacting people’s ability to actually do their job, in a practical way? And if so, then maybe we can legitimately restrict people’s use of or wearing of these symbols. Otherwise doing it on high-principle grounds, in the way that we’re seeing in Quebec, I don’t think the rest of the country is necessarily going to follow that approach.

Lisa Richmond:

Which raises the question, what is the job?

Stéphane Sérafin:

It does. Well, that’s another thing too. What is the job of a police officer?

Lisa Richmond:

As we bring this podcast to a close, we want to leave you with the following final comments. First, from David Koussens:

David Koussens:

Quebec adopted in 2019 this law of secularism of the state. But the state in 2018 was a secular state. […] So the first thing is that we have to understand that the government didn’t do secularism in 2019. It did something else. It promoted a specific secular arrangement that limits the freedom of religion of certain groups who, for certain people, civil servants, work for the province of Quebec. […] Because when we observe what’s done with this law, is there a high level of neutrality of the state? No, because the law was adopted with the premises that some religious groups, persons who have visible practices, cannot be neutral in their action when they serve the state. Is it a high level of the guarantee of freedom of religion? No, it’s not, because we limit the expression of certain religious practices. Is it a high level of equality between the conceptions of the good? No, it’s not, because, again, some groups are discriminated [against]. […] It’s a secularism that does not correspond to what we should expect from a secular state: neutrality, separation, guarantee of freedom of religion, and equality. […] It’s important to continue to defend secularism, but secularism in what is beautiful in secularism, the guarantee of freedom of conscience and what defined all liberal demoracies, that now are, and it’s very sad, attacked by the growing of populism, fear of immigrants, religious minorites. And we have to be aware that this, that secularism shouldn’t be manipulated like it is now by these populist governments.

Lisa Richmond:

Charles Taylor:

Jean-Christophe Jasmin:

Everything is connected, and the fact that the constitutional repatriation was in a sense botched maybe brought us into this. […]

Charles Taylor:

We can see that Trudeau in his, I’m talking of Pierre, in his haste to get his Constitution ran through, left us a very, very difficult legacy.

Jean-Christophe Jasmin:

An unsolvable legacy in a sense. […]

Charles Taylor:

So there’s a kind of bleeding sore here that we have to—. Now, why am I not completely depressed? Well, because I note with younger people that they are in another mindset. And for a lot of them, and this is true in the States as well as here, for a lot of younger people, the diversity of the society is a kind of richness that they have experienced, rubbing shoulders with different people.

JC Jasmin:

And I put myself in the shoes of an immigrant reading the Journal de Montréal, and it seems like this, that there’s this perpetuation of the two solitudes that is very sad.

Charles Taylor:

It makes you want to cry. It seems so hard to get rid of.

Jean-Christophe Jasmin:

I grew up in the West Island, and part of these French Canadian families who were farmers on the West Island of Montreal who saw this first wave of not only immigration but anglicized immigration. I was young, in the nineties, so I saw a lot of anti-Quebec racism firsthand, and the reaction of Quebeckers that, you answer racism with racism. […] For me it’s my Christian conversion that basically forced me to reassess my relationship with the other, under a Christian framework saying, I cannot hate my neighbour. I have to forgive and talk. But if it wouldn’t have been this religious conviction that I cannot be such kind of nationalist, I think I would still be very . . .

Charles Taylor:

But the insight that comes from this is that the Anglos have done a lot to create this world. That’s absolutely true.

Jean-Christophe Jasmin:

One of the things that shocks me the most is—not “shocks” in disgust, but more, it’s surprising that, how much English Canadians don’t seem to realize that they’re a part of a cultural hegemon. Like the Anglo-American culture is dominating the world. And it comes with a lot of cultural luxury, in a sense. You have immigrants coming here, but they already listen to your music, they are familiar with the legal system because they watch CSI in Lebanon, Law and Order, or TV shows. So of course, sooner or later, you know, they will assimilate, or the children will assimilate. Whereas Quebec, the perception is that its survival has been a miracle. You know, it shouldn’t have happened.

Charles Taylor:

That’s how I feel too. Only 70,000 . . .

Jean-Christophe Jasmin:

Only 70,000. There were more French speakers in New England at the Conquest, the French Protestant Huguenots in New England, than in Quebec.

Charles Taylor

I see!

Jean-Christophe Jasmin:

And you don’t hear about them anymore. […] So in my mind, it’s sad because I think that if it was not for this existential threat we’d have a much more mature relationship with immigration. We’d have the same problem as every culture, but not this particular way it is in Quebec. And same thing with religion. I’d like to hear you on that too, but my hypothesis is that every nation needs this foundational myth. Quebec’s story is unfortunately a history of survival and loss. And that the whole Quiet Revolution discourse was maybe a coping mechanism. We couldn’t get independence from Canada, but at least we got it from the Catholic Church. So there’s some of a national founding history on that. And now it feeds the anti-religious sentiment. Artificially, in a sense.

Lisa Richmond:

Guillaume Lamy:

Guillaume Lamy:

It’s Occidental Western world, the Western countries, they try build up a new form of integration, of diversity through a supra or meta politics. Banning headscarves or public prayers won’t do that much to integrate diversity. […] Banning is not a strategy. In the past, in the seventies, Quebec did a very famous and powerful law, it’s the Bill 101, that imposed to send the kids of immigrants in French schools. This is integration. This will have an effective impact to social cohesion, because the kids will be raised in French, and they will use French as their everyday currency to talk with others. But when we ban religious symbols, what’s the ingredient that will work, in integration and inclusion of diversity? We are just banning things. […] So it helps parties to stay in power, to make gains from an electoral point of view. But it won’t deliver anything to build a common sense of citizenship.

Lisa Richmond:

Hicham Tiflati:

Hicham Tiflati:

We don’t want a faceless society. Religion is a part of the societal and the national fabric, and it’s not going anywhere. Religion is here. Religion will adapt. It will modify itself. We have churches where, leaders of churches who are from the LGBT community, something we did not think of just 25 or 30 years ago. We have three mosques now with the imams who are from the LGBTQ+ community, even within Islam. So religion will adapt, change, it will modify itself, but it’s here to stay in one way or another.

Jean-Christophe Jasmin:

And Xavier Gélinas:

Xavier Gélinas:

The situation in Quebec in terms of its own self-identity or its constitutional future seems to have been settled, but for most Quebec nationalists, it’s unsettled and it is worrying. […] Sovereignty has not been gained, and the enshrining or enshrinement of the famous “distinct society” has not occurred. They see the federal government as, almost every week, trampling into Quebec provincial jurisdiction. Therefore, these nationalist Quebeckers, whether they are still exponents of federalism or whether they are sovereignist, they want to strengthen what they deem to be the Quebec nation or the Quebec identity. Language is one of the tools they use. A stronger control of immigration is one of the tools they use. And laïcité, or secularization, is also one of the tools they use. It can be said that, therefore, laïcité is both viewed as a desirable end in itself and as one of the compensatory tools for the uncertain and—I’m looking for a good adjective—status of Quebec. […]

There is a general valuing today of the fact that there is not one single way of apprehending things. And that in the interest of coexistence and civility and being part of the brotherhood and sisterhood of Canada, we should accommodate some differences whenever possible, […] understanding and acknowledging that one has the right to be wrong from time to time, and also acknowledging that one has the right to change views over the course of time due to new knowledge or further introspection and reflection. […] Let’s please keep in mind that decent, […] well-educated, well-traveled persons who have thought these matters for decades with the same level of certainty and rigour and scholarship come with different approaches to regulate, or sort of orchestrate, the relationship between faiths under the umbrella of the state. The Quebec model is largely inspired from the French continental model, and also from many, many other European continental models. It may be an inappropriate model, it may be not the best, but it’s certainly one model deemed legitimate by millions, if not hundreds of millions, of well-informed, generally decent societies. It’s important to keep this in mind. We may well rebut it, but it’s important to respect its legitimacy. It will help so much having a fruitful exchange of views. Et je le crois vraiment. Voilà. Et ça se manque tellement beaucoup.

Lisa Richmond:

“I truly believe that,” he said. “Yes. And that’s what is so missing.”

Jean-Christophe Jasmin:

Thank you for listening. This podcast is a project of Cardus, a public policy think tank based in Ottawa and Hamilton, Ontario. To learn more about Cardus, please visit our website at cardus.ca. The narration was written by Étienne-Alexandre Beauregard, Lisa Richmond, and Jean-Christophe Jasmin. Hosted by Jean-Christophe Jasmin and Lisa Richmond. Produced by Francis Denis. We acknowledge with gratitude our interviewees: Francis Denis, Nadia El-Mabrouk, Xavier Gélinas, Julius Grey, David Koussens, Guillaume Lamy, Guillaume Rousseau, Stéphane Sérafin, Charles Taylor, and Hicham Tiflati.