Lost in Translation? Bill 21, Human Rights and The Margin of Appreciation

Abstract

The adoption of Bill 21 banning religious symbols for civil servants in Quebec has stirred considerable debate politically and constitutionally, in Quebec and in Canada. Neglected, however, has been a more in-depth analysis of how international human rights law often serves as an implicit frame of reference for many of the surrounding debates. This is despite the fact that foreign human rights references have already made their way into discussions. This article focuses, in particular, on the invocation of the case law of the European Court of Human Rights, which seem to have validated bans of religious symbols in various contexts. It gives a brief overview of that jurisprudence and specifies the parameters within which this case law operates. It argues that whilst Quebec is less alone in banning religious symbols than is sometimes argued, the European case law needs to be handed carefully and remains of limited translatability. In particular, the article emphasizes the importance of the so-called “margin of appreciation” as heavily conditioning the outcome in those cases. Although the margin suggests national leeway in adopting bans based on certain national traditions and specificities, nor is it an open door to all bans. Rather, the margin emphasizes the need for significant divergences between states parties on an issue and respect for procedural safeguards as sine qua nons for the valid invocation of the margin. The article concludes with some thoughts on how importing human rights arguments out of context can be perilous, but also about how the margin itself may be problematic.