There are events that illustrate how the limits imposed on rights and freedoms are perceived in different ways depending on the socio-cultural backgrounds that make up our pluralist societies. We agree to recognize the existence of rights to equality and freedom of expression, but when the time comes to judge the reasonableness of the limits imposed on them, cultural differences weigh heavily. At the rights and freedoms buffet, not everyone chooses the same dish!
There is, for example, the moderator of the leaders’ debate who challenges a political leader by postulating that Quebec’s laws on secularism and on language are “discriminatory”, even racist. A few days earlier, we learned that an Ontario school board, in the name of reconciliation, had seen fit to remove from its libraries, sometimes by burning them, books written in another era. In the fall of 2020, a school board that nevertheless contested the limits imposed by the Quebec State Secularism Act saw no problem in ordering the redaction of the title of a book cited in school textbooks because that it contains a word which, for some, evokes suffering and injustice.
The censorship of books practiced in certain circles, such as this Montreal school board, can be considered from the point of view of the reasonableness of the limits. In the name of a legitimate concern to take into account the suffering endured by people who are victims of racism, one may find it reasonable to limit freedoms of expression by censoring words or deleting books. Does this testify to a liberticidal attitude?
Supporters of the Quebec law on secularism believe that the limits it imposes on freedom of religion are reasonable. The constraints it imposes are limited to certain specific situations and it only applies to a certain number of people who are in a position of authority. The measure reflects the conceptions underlying the secularism of the state as understood in countries like France and other European countries. We can certainly maintain reservations about this vision of secularism, but are France, Switzerland and Belgium for all that racist countries?
The reasonableness of the limits
Inspired in this regard by the European Convention on Rights, our charters of rights require the analysis of measures which limit freedoms in order to determine whether they are reasonable and can be justified in a democratic society.
The inclusion of such a clause recognizing the possibility of imposing limits on rights and freedoms was precisely intended to reflect the differences that exist within the European mosaic. In Europe, the courts set up to judge the conformity of state laws with fundamental rights have constructed their assessments by recognizing states as a “margin of appreciation” of the conditions in which rights and freedoms are exercised. For example, concerning the wearing of religious symbols, the European Court of Human Rights has validated a Belgian law prohibiting being in public space wearing an outfit intended to conceal the face. The Court considered that the State authorities “are in principle better placed than the international judge to assess the local needs and context”.
In Canada, as early as 1995, Professor Ghislain Otis noted that Canadian courts have referred to European reasoning to recognize that legislators are in a better position than judges to assess the balances that must exist between rights and values. The need, within a federal framework, to recognize that the understanding of limits to rights and freedoms may differ from province to province has sometimes been mentioned. Some believe that it is of the very essence of federalism that the federated states exercise their powers according to the values which seem important to their respective populations.
The evaluation of the limits to fundamental rights depends on the cultural references that prevail in the different environments. What is considered a discriminatory measure in one province will be considered elsewhere as a measure to promote equality. What some see as censorship will be seen in other quarters as reflecting a necessary and reasonable consideration of the needs of historically marginalized groups.
It is certain that there is a threshold beyond which the public authorities cannot go when they limit the rights. But outside this threshold, there is a wide spectrum of possibilities allowing to conclude to the reasonableness or legitimacy of the justifications in the name of which one limits a right or a freedom. By agreeing that legislators have a margin of appreciation in this regard, it is assumed that the political authorities are better placed to assess the socio-political issues affected by the measures they put in place.
It is up to the judges to arbitrate these evaluations of the reasonableness of the boundaries, and the judges are certainly marked by the worldviews that prevail in the socio-cultural circles from which they come. There is a weighty argument in claiming that the courts show restraint when called upon to judge measures adopted by elected officials.
To say that laws or other state measures limit rights and freedoms is to say the obvious. The real questions are whether these limits are justifiable and reasonable. In a pluralistic society, these questions may receive different answers reflecting the diversity of cultural sensitivities that prevail there.