Canada and the problem with Bill 21
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Quebec's controversial secularism law takes the stand

In France and in Canada's Francophone province of Quebec issues of personal freedom have recently been thrown into sharp relief. In Quebec, legal proceedings have been initiated against Law 21, which prohibits public servants from wearing religious symbols in the workplace. Richard Marcus reports

By Richard Marcus

In both France and Canada, laws that were supposed to have made for a peaceful, more representational society, have instead created atmospheres of mistrust and hatred. In Quebec visible religious minorities, Sikhs, Jews and Muslims in particular, have been singled out as 'different' from the norm and made to stand out even more. Wear a hijab, yarmulke or turban mark in Quebec or, arguably, in France, and you are not really a paid-up member of society.

While France has a history of secularism dating back to the Revolution, Quebec has a long history of the exact opposite. It wasn't until the early 1960s that a new generation of Quebec intellectuals and politicians (including former Prime Minister Pierre Trudeau and former Quebec Premier and nationalist Rene Levesque) helped bring about what was known as The Quiet Revolution.

Initially Quebec nationalism, especially under Levesque, (who became premier as the leader of the Parti Quebecois (PQ) in 1976 with the expressed goal of creating a separate country ) was broadly socialist. Over the years, however, that has changed and the last PQ leader who attempted a referendum on separatism, Jacque Parizeau, blamed immigrants for its defeat.

The 'Notwithstanding Clause'

Aware of how discriminatory their new law would be and in order to prevent court challenges based on its contravention of Canada's Charter of Rights and Freedoms, the government of Quebec – headed by Francois Legault – invoked Article 33 of Canada's constitution. Known as the Notwithstanding Clause, Article 33 allows them to pass a law notwithstanding the fact it contravenes the Charter. The only time the Notwithstanding Clause may not be used is if the law interferes with democratic, mobility, or language rights.

Demonstrators stand outside the courthouse on the first day of the constitutional challenge to Bill 21, which bans public workers in positions of "authority" from wearing religious symbols, before the Quebec Superior Court in Montreal on 2 November 2020 (photo: THE CANADIAN PRESS/Paul Chiasson)
Pandering to the right: Premier Legault and his government contend the law is necessary to quell recurring unease about "religious pluralism and the place of religion in the civic space". Yet this sets a dangerous precedent: if a government can ban religious adherents from certain jobs, what is to stop future governments from enacting the similar legislation to prevent other minorities, for example, members of the LGBTQ community, from occupying public service positions in the future?

All of which makes the outcome of the court challenge, which is expected to last for weeks and eventually end up in Canada's Supreme court, launched at the beginning of November by various civil rights groups in Quebec all the more difficult to predict. They are not allowed to use arguments based on the Charter of Rights or the law's constitutional validity. Instead they have to prove that the law deprives plaintiffs of the opportunity to be involved in public life because of their religious beliefs.

For their part, the government is going to be arguing that a legislature has the right to codify the will of the people into law – and in this case a majority of Quebecois support the new law. They will also contend the law is necessary to quell recurring unease about "religious pluralism and the place of religion in the civic space".A dangerous precedent

The plaintiffs in the case –there are four separate groups bringing the action including The National Council of Muslims and the multi-faith group Coalition Inclusion Quebec – will counter the government with the argument that the law sets a dangerous precedent. If a government can ban religious adherents from certain jobs, what is to stop future governments from enacting the similar legislation to prevent other minorities, for example, members of the LGBTQ community from teaching, in the future?

 

During the first week of the trial the court heard from witnesses who described the impact the bill was having on their lives. Both Muslim and Sikh teachers related how the ban either cost them their jobs or chances of promotion, (teachers who are already employed can wear their religious symbols if they don't change schools or accept promotions) prompting them to leave the province where they were born – Quebec – to seek employment.

The court also heard how in Canada Muslim women wear the hijab as a matter of choice and consider it a symbol of empowerment, countering the claims of the government that it is an indication of oppression. Bouchera Chelbi, an elementary teacher in Montreal Quebec, testified that her hijab doesn't foist a world view on her students any more than a person wearing high heels does.

The court has also heard from expert witness Thomas Dee from Stanford University's Department of Education on how the ban will adversely impact the educational system. First, it will send a message to minority students that they aren't welcome in the school system. Secondly, it will also have an impact on white students, as they will not experience – or be exposed to – the pluralism that is supposed to exist in a democracy.

Where secularism ends and discrimination begins

That this trial kicked off in the same week that France was reeling from yet another terrorist attack, the beheading of teacher Samuel Paty after he showed a cartoon depicting an image of The Prophet Muhammad in his class, has made the trial all the more fraught. While the attack has nothing to do with what happens in Quebec – the only terror attacks carried out in Quebec have been against Muslims or by Quebec nationalists in the 1970s – Premier Legault has tried to link the two as justification for his new law.

When President Emmanuel Macron justified the cartoons as free speech and Legault supported him, Macron phoned to thank him. However, he didn't phone Canada's Prime Minister Justin Trudeau, even though Trudeau roundly condemned the attack, because the latter suggested there are limits to what qualifies as free speech. (Canada has very stringent hate speech laws). "One doesn't yell 'Fire!' in a crowded theatre" was his quote.

 

Canada and France both have laws guaranteeing the separation of church and state, but neither seems able to grapple with the fact they are both pluralistic societies. In Canada the anti-hate speech laws were a step in that direction, but they are increasingly being undermined by people decrying the loss of their ability to be racist and discriminatory as an attack on free speech – Macron's rational for defending cartoons offensive to many Muslims.

In Quebec, Legault not only preaches the same line (he recently condemned an Ontario university for suspending a professor for using a word derogatory to African Canadians), he is enacting laws that discriminate against people based on their religion, and all in the name of secularism. All this poses the question of where the desire for a secular state ends and discrimination begins.

Although France has a long history of laicism on its side, it still appears to lack sensitivity in the treatment of minorities, being keen to appease the voting majority. Quebec, lacking a similar history, merely seems intent on preserving a way of life that no longer exists beyond the sentimental nationalist notions of a privileged few.

Richard Marcus

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