The Act respecting the secularism of the State stipulates, in section 5, that the Conseil de la magistrature du Québec must establish rules to ensure that the principles of secularism set out in the law are respected in the courts under its jurisdiction. authority. This concerns, among other things, the judges of the Court of Québec, the Human Rights Tribunal, the Professions Tribunal and the municipal courts, as well as the decorum of the hearing rooms.
The secularism defined in Law 21 is based in particular on the principle of religious neutrality “in fact and in appearance” of public institutions. This requirement of real and apparent neutrality stems from a judgment of the Supreme Court of Canada, that of the Mouvement laïque québécois against the City of Saguenay.
In a recently released document, The requirements of secularism in Quebec, the Council concludes that it is not necessary to modify the current codes of ethics since they already require that judges demonstrate impartiality. He even considers that the wearing of a religious sign by a judge in office is not in itself a breach of his duty of neutrality and that it is up to each person to determine, “in his soul and conscience”, whether a sign can be worn or not.
Impartiality and “apparent neutrality”
In a legal opinion addressed to Jean-François Roberge, Minister responsible for Secularism, the legal adviser of the Mouvement laïque québécois, Mr.e Luc Alarie argues that the Judicial Council clearly confused judges’ duty of impartiality with religious neutrality “in fact and appearance”.
On the one hand, the codes of ethics of judges appointed by Quebec do not contain any provision regarding standards of dress or the wearing of political, religious or identifying symbols. There is therefore a primary reason justifying the need to make these codes conform to the requirements of the law with regard to the apparent religious neutrality of the court.
On the other hand, the regulations of the Court of Québec, the Human Rights Tribunal and the municipal courts contain prescriptive standards on the dress code of judges and lawyers, in particular, who must wear “the toga”. closed or with a black jacket, white shirt, collar and flap”. These regulations do not provide for any derogation from this dress due to religious beliefs.
Not only are these rules not always respected, but the real and apparent neutrality of the courts is not limited to the attire of judges and lawyers. Clerks, bailiffs, special constables and other officers of the court are also part of courtroom decorum. The same is true of the crucifixes which are still found in certain municipal courts, and of the Bibles which are still present although they are in no way necessary for taking the oath.
The current rules are therefore insufficient to ensure the real neutrality of the courts, and it is up to the Conseil de la magistrature to see to the adoption of the necessary rules to ensure that all persons under its authority comply with the requirements of the law and that objects of worship and religious symbols are not used by such staff during hearings.
The need for Article 5
There is a widely recognized principle in law that “the legislator does not speak in silence”. The Government of Quebec was clearly aware of the content of the code of ethics for judges as well as the rules of dress when it adopted Bill 21. If the legislator thought it necessary to insert article 5, it is because he considered that these standards were insufficient to ensure compliance with the law.
The Conseil de la magistrature, no more than any judge, has challenged the validity and scope of section 5. Its legitimacy and its necessity seem all the more recognized by all.
Following the Supreme Court judgment mentioned above, the Canadian Judicial Council for its part deemed it necessary to add to its ethical principles an article specifying that federally appointed judges must avoid wearing badges showing their support for a cause or point of view.
If the Conseil de la magistrature du Québec persisted in its desire not to act, we would find ourselves with two categories of judges, and faced with the following contradiction: federal judges respecting the principles of apparent secularism, although appointed by a government federal government that challenges Bill 21, and judges appointed by Quebec who refrain from applying these principles in a secular state.
Ill-founded opinions
Surprisingly enough, we also learned through the steps taken by the group Droits Collectifs Québec that the Conseil de la magistrature du Québec sought the opinion of two persons who were not legally qualified to formulate legal opinions on the application of Article 5. One of these two persons is a notorious opponent of the adoption of the Law on the secularism of the State.
For all these reasons, the Mouvement laïque québécois is expressly asking Minister Jean-François Roberge to remind the Conseil de la magistrature, without undermining the separation of powers between the judiciary and the executive, of its obligation to comply with the requirements of article 5 of the Law on the secularism of the State and to ensure their implementation.