There State Secularism Act stipulates, in article 5, that the Judicial Council must establish rules aimed at ensuring that the principles of secularism set out in the law are respected in the courts under its jurisdiction. 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 Quebecthe Council comes to the conclusion that it is not necessary to amend the current codes of ethics since they already require judges to demonstrate impartiality.
The Council even considers that the wearing of a religious symbol 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 such sign may or may not be worn.
Impartiality and “apparent neutrality”
In a legal opinion addressed to Minister Jean-François Roberge as responsible for secularism, the legal adviser of the Mouvement laïque québécois, Mr.e Luc Alarie, argues that the Council has clearly confused the duty of impartiality of judges and religious neutrality “in fact and appearance”.
The codes of ethics of judges appointed by Quebec do not contain any provision with respect to standards of dress or the wearing of political, religious or identifying symbols.
There is therefore already a first reason justifying the need to make these codes conform to the requirements of the law in terms of 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 dress, in particular for judges and lawyers who must wear “the toga closed or with 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 dress code of judges and lawyers. Clerks, bailiffs, special constables and other officers of the court are also part of the decorum of courtrooms. The same applies to crucifixes, which are still found in certain municipal courts, and 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.
Necessity of article 5
There is a widely recognized principle in law that “the legislator does not speak in vain”. 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 section 5, it is because he considered that these standards are 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.
Subsequent to the Supreme Court judgment referred to above, the Canadian Judicial Council for its part deemed it necessary to add an article to its Ethical Principles specifying that federally appointed judges must avoid wearing badges showing their supporting a cause or point of view.
If the Conseil de la magistrature du Québec persisted in its desire not to act, we would therefore find ourselves with two categories of judges and faced with the following contradiction: federal judges respecting the principles of apparent secularism, although appointed by the 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 have also learned, thanks to the steps taken by the group Droits Collectifs Québec, that the Council has sought the opinion of two people who are not legally qualified to issue legal opinions on the application of Article 5 One of these two people is a notorious opponent of the adoption of the State Secularism Act.
For all these reasons and without undermining the separation of powers between the judiciary and the executive, the Mouvement laïque québécois is expressly asking Minister Jean-François Roberge to remind the Conseil de la magistrature of its obligation to comply with the requirements of the article 5 of the State Secularism Act and ensure their implementation.