Pitched battle for secularism
The National Assembly adopts under gag order the Law on the secularism of the State. The Mouvement laïque québécois (MLQ) is delighted to see secularism "finally" affirmed in Quebec law, including in the Charter of human rights and freedoms. Secularism is "the bearer of harmony and social cohesion", he emphasizes broadly. Discord erupted the next day inside and outside the Montreal Courthouse.Teaching student Ichrak Nourel Hak is "stunned, hurt and insulted that the government would take away her much-desired career just because she wears the hijab." His lawyers are urging the Superior Court to suspend “Bill 21”, starting with the ban on the wearing of religious symbols targeting certain state employees which appear therein. A long legal battle begins. The “artisans of secularism” breathe a sigh of exasperation.
"I found that they were quick on the trigger," says one of the leading figures of the MLQ, Lucie Jobin, a year and nine months after the start of the legal tribulations of Bill 21. "But, we are there. was waiting. "
Defenders and detractors of the Law on State Secularism await with apprehension the verdict of Judge Marc-André Blanchard, even if they suspect that he will not have the last word.
Two of the articles in the crosshairs of opponents
Article 6
Wearing a religious symbol is prohibited in the performance of their duties [for certain government employees, including police officers, prosecutors, prison guards, teachers and principals of public primary and secondary schools] . Within the meaning of this article is a religious sign any object, in particular a garment, a symbol, a jewel, an adornment, an accessory or a head covering, which is […] worn in connection with a conviction or a religious belief [or ] reasonably considered to refer to a religious affiliation.
Article 8
A staff member of an organization must perform his duties with his face uncovered. Likewise, a person who presents himself to receive a service by a member of the staff of an organization must have his face uncovered when this is necessary
to allow the verification of his identity or for security reasons.
“We cannot rule out the idea that Canadian courts are slashing Bill 21 as they did Bill 101,” says historian Lucia Ferretti. Invalidation of sections of the law - the articles providing for the prohibition of the wearing of a religious symbol in the exercise of certain functions (article 6) and the obligation of the face uncovered during the provision and reception of public services (Article 8) - by the courts will have consequences, she believes. "If the courts overturn or weaken the law, they will again stir up social tensions in Quebec", apprehends the professor at UQTR, while recalling that "law 21" enjoys solid support among the Quebec population. . "Can we still speak of the rule of law in Canada when, when it applies in Quebec, he shows himself so little concerned with democracy? She asks.
However, the fallout from the Law on State Secularism is unclear in a society where social contact was rare during the time of COVID-19. "We are teleworking, few government services have been offered in person, teaching methods are upset, in short, it is impossible under current conditions to make a first assessment of Bill 21", explains Ms. Ferretti.
One thing is certain, Bill 21 has a very great symbolic significance insofar as it “affirms and implements the right and legitimacy of Quebec to make its own choices, in a democratic manner, and to regulate in its own way the relations between 'State and religions', according to the co-author of the essay 'The stakes of a secular Quebec: Law 21 in perspective'. She takes as proof the reactions, according to her, disproportionate from her detractors who took the form sometimes of "hate propaganda against Quebecers", sometimes of "promotion of non-compliance with the law", sometimes of "appeal [of elected from the rest of Canada] to the
“government of judges” against a law adopted by the National Assembly ”…
The damage caused by the Law on the secularism of the State is already great, lament members of the group “students opposed to law 21”: a “safe space” created by the teacher Gabrielle Hébert where a few dozen people "directly affected by Bill 21" and their "allies" discuss. "We try to teach children that they are free to choose their clothes, their religion [to assume] their sexual orientation, while we have to unwillingly undress to teach," said one of the participants. . “It's as if we have become unacceptable, everywhere,” adds another.
"I found that they were quick on the trigger," says one of the leading figures of the MLQ, Lucie Jobin, a year and nine months after the start of the legal tribulations of Bill 21. "But, we are there. was waiting. "
Defenders and detractors of the Law on State Secularism await with apprehension the verdict of Judge Marc-André Blanchard, even if they suspect that he will not have the last word.
Two of the articles in the crosshairs of opponents
Article 6
Wearing a religious symbol is prohibited in the performance of their duties [for certain government employees, including police officers, prosecutors, prison guards, teachers and principals of public primary and secondary schools] . Within the meaning of this article is a religious sign any object, in particular a garment, a symbol, a jewel, an adornment, an accessory or a head covering, which is […] worn in connection with a conviction or a religious belief [or ] reasonably considered to refer to a religious affiliation.
Article 8
A staff member of an organization must perform his duties with his face uncovered. Likewise, a person who presents himself to receive a service by a member of the staff of an organization must have his face uncovered when this is necessary
to allow the verification of his identity or for security reasons.
“We cannot rule out the idea that Canadian courts are slashing Bill 21 as they did Bill 101,” says historian Lucia Ferretti. Invalidation of sections of the law - the articles providing for the prohibition of the wearing of a religious symbol in the exercise of certain functions (article 6) and the obligation of the face uncovered during the provision and reception of public services (Article 8) - by the courts will have consequences, she believes. "If the courts overturn or weaken the law, they will again stir up social tensions in Quebec", apprehends the professor at UQTR, while recalling that "law 21" enjoys solid support among the Quebec population. . "Can we still speak of the rule of law in Canada when, when it applies in Quebec, he shows himself so little concerned with democracy? She asks.
However, the fallout from the Law on State Secularism is unclear in a society where social contact was rare during the time of COVID-19. "We are teleworking, few government services have been offered in person, teaching methods are upset, in short, it is impossible under current conditions to make a first assessment of Bill 21", explains Ms. Ferretti.
One thing is certain, Bill 21 has a very great symbolic significance insofar as it “affirms and implements the right and legitimacy of Quebec to make its own choices, in a democratic manner, and to regulate in its own way the relations between 'State and religions', according to the co-author of the essay 'The stakes of a secular Quebec: Law 21 in perspective'. She takes as proof the reactions, according to her, disproportionate from her detractors who took the form sometimes of "hate propaganda against Quebecers", sometimes of "promotion of non-compliance with the law", sometimes of "appeal [of elected from the rest of Canada] to the
“government of judges” against a law adopted by the National Assembly ”…
The damage caused by the Law on the secularism of the State is already great, lament members of the group “students opposed to law 21”: a “safe space” created by the teacher Gabrielle Hébert where a few dozen people "directly affected by Bill 21" and their "allies" discuss. "We try to teach children that they are free to choose their clothes, their religion [to assume] their sexual orientation, while we have to unwillingly undress to teach," said one of the participants. . “It's as if we have become unacceptable, everywhere,” adds another.
More than one Baccalaureate student in preschool and elementary education threw in the towel, regrets the former coordinator of the Association of Students of the Faculty of Education of UQAM (ADEESE-UQAM ). Others have given up on the public network.
In Gabrielle Hébert's eyes, Bill 21 was a “spark” of “discriminatory behavior” against Muslim women wearing the veil. Tensions persist, so much so that "they are still afraid to go out on their own". The judgment of the Superior Court, inevitably, will exacerbate them, fears the activist.
Lucie Jobin, a retired teacher, for her part participated in all the struggles of the MLQ, including those of the exemption from religious education in schools and the abolition of prayer in municipal assemblies - which l 'took to the Supreme Court of Canada in 2015.
The artisans of secularism are today waging a decisive battle before the courts, argues the president of the MLQ, Daniel Baril.
The group promoting “the complete secularization of the state and public institutions of Quebec” intervened to support the validity of Bill 21, through the Mouvement laïque québécois c. Saguenay . Judge Marc-André Blanchard said he had read it 15 times, points out Mr. Baril to Le Devoir. “The spirit of the law was already in the judgment [of the Supreme Court:] the religious neutrality of the state does not have to be reconciled with other rights. It is in the normality of things that institutions are secular, ”says Mr. Baril. In passing, he scratches the strategy "of not presenting any evidence on the justification of the law in order to stick to the sole competence of Quebec
to adopt the Law" advocated by the Attorney General of Quebec in court.
Minister Simon Jolin-Barrette is determined to ensure that Law 21, of which he is the author - and today the defender - does not fall into oblivion, regardless of the fate that the courts reserve for him. Pending the decision of the Superior Court, he created the Guy-Rocher secularism prize. This will reward a personality, an organization or a group of people who have made “a contribution in favor of secularism”, while paying tribute to the sociologist Guy Rocher, according to whom “the secularism of the State is at the heart of the historical journey. specific to [the] nation [Quebec] ”. The identity of the first winner will be known on June 16, 2021,
two years to the day after the adoption of Law 21.
In Gabrielle Hébert's eyes, Bill 21 was a “spark” of “discriminatory behavior” against Muslim women wearing the veil. Tensions persist, so much so that "they are still afraid to go out on their own". The judgment of the Superior Court, inevitably, will exacerbate them, fears the activist.
Lucie Jobin, a retired teacher, for her part participated in all the struggles of the MLQ, including those of the exemption from religious education in schools and the abolition of prayer in municipal assemblies - which l 'took to the Supreme Court of Canada in 2015.
The artisans of secularism are today waging a decisive battle before the courts, argues the president of the MLQ, Daniel Baril.
The group promoting “the complete secularization of the state and public institutions of Quebec” intervened to support the validity of Bill 21, through the Mouvement laïque québécois c. Saguenay . Judge Marc-André Blanchard said he had read it 15 times, points out Mr. Baril to Le Devoir. “The spirit of the law was already in the judgment [of the Supreme Court:] the religious neutrality of the state does not have to be reconciled with other rights. It is in the normality of things that institutions are secular, ”says Mr. Baril. In passing, he scratches the strategy "of not presenting any evidence on the justification of the law in order to stick to the sole competence of Quebec
to adopt the Law" advocated by the Attorney General of Quebec in court.
Minister Simon Jolin-Barrette is determined to ensure that Law 21, of which he is the author - and today the defender - does not fall into oblivion, regardless of the fate that the courts reserve for him. Pending the decision of the Superior Court, he created the Guy-Rocher secularism prize. This will reward a personality, an organization or a group of people who have made “a contribution in favor of secularism”, while paying tribute to the sociologist Guy Rocher, according to whom “the secularism of the State is at the heart of the historical journey. specific to [the] nation [Quebec] ”. The identity of the first winner will be known on June 16, 2021,
two years to the day after the adoption of Law 21.
A look back at the tribulations of the Law on the secularism of the State before the courts
June 16, 2019
Adoption under gag order of the Law on the secularism of the State by the National Assembly
June 17, 2019
The Bachelor of Education student at the University of Montreal, Ichrak Nourel Hak, the National Council of Muslims of Canada and the Canadian Civil Liberties Association are filing a judicial review appeal to declare the new law invalid, as well as '' a request for a temporary stay of the articles providing for the prohibition of the wearing of a religious symbol in the exercise of certain functions (article 6) and the obligation of the face uncovered during the provision and reception of public services (article 8 ).
July 18, 2019
Judge Michel Yergeau of the Superior Court refuses the request for a stay of application of Law 21. The plaintiffs have failed to prove the existence of irreparable harm, to show that a stay would be in the public interest and to demonstrate the urgency of the situation even if they had brought to light serious questions as to the constitutionality of the Law, according to the magistrate.
1 st August 2019
The Chief Justice of the Quebec Court of Appeal, Nicole Duval Hesler, allows the motion for leave to appeal the Superior Court's decision.
December 12, 2019
Court of Appeal judges Robert Mainville and Dominique Bélanger dismiss the appeal from the interlocutory judgment rendered by Judge Michel Yergeau. Judge Nicole Duval Hesler would have allowed the appeal in part and suspended the application of the ban on wearing a religious symbol in the exercise of certain functions (article 6).
April 9, 2020
The Supreme Court of Canada rejects the applicants' application for leave to appeal from the decision of the Quebec Court of Appeal.
Fall 2020
Judge Marc-André Blanchard of the Superior Court is tasked with deciding on the merits. A battalion of lawyers,
experts and witnesses paraded in front of him for more than a month.
June 16, 2019
Adoption under gag order of the Law on the secularism of the State by the National Assembly
June 17, 2019
The Bachelor of Education student at the University of Montreal, Ichrak Nourel Hak, the National Council of Muslims of Canada and the Canadian Civil Liberties Association are filing a judicial review appeal to declare the new law invalid, as well as '' a request for a temporary stay of the articles providing for the prohibition of the wearing of a religious symbol in the exercise of certain functions (article 6) and the obligation of the face uncovered during the provision and reception of public services (article 8 ).
July 18, 2019
Judge Michel Yergeau of the Superior Court refuses the request for a stay of application of Law 21. The plaintiffs have failed to prove the existence of irreparable harm, to show that a stay would be in the public interest and to demonstrate the urgency of the situation even if they had brought to light serious questions as to the constitutionality of the Law, according to the magistrate.
1 st August 2019
The Chief Justice of the Quebec Court of Appeal, Nicole Duval Hesler, allows the motion for leave to appeal the Superior Court's decision.
December 12, 2019
Court of Appeal judges Robert Mainville and Dominique Bélanger dismiss the appeal from the interlocutory judgment rendered by Judge Michel Yergeau. Judge Nicole Duval Hesler would have allowed the appeal in part and suspended the application of the ban on wearing a religious symbol in the exercise of certain functions (article 6).
April 9, 2020
The Supreme Court of Canada rejects the applicants' application for leave to appeal from the decision of the Quebec Court of Appeal.
Fall 2020
Judge Marc-André Blanchard of the Superior Court is tasked with deciding on the merits. A battalion of lawyers,
experts and witnesses paraded in front of him for more than a month.
Against law 21
English Montreal School Board
Bill 21 “inadmissibly erases the rights to education in the language of the minority” provided for in section 23 of the Canadian Charter of Rights and Freedoms. It constitutes "an illegitimate constraint on the right of management and the governance of English-language school boards in Quebec". On the other hand, the ban on the wearing of religious symbols targets women, especially those of Muslim faith wearing the hijab, who are prevented from exercising their rights on an equal footing with men. The acquired rights clause which allows teachers on the job before the adoption of Law 21 to wear religious symbols is also problematic. Indeed,
Autonomous Federation of Education
Law 21 is freedom-killing. “Freedom of religion as stated in the Canadian Charter is not only about beliefs, but also about religious practices, such as wearing religious symbols. Thus, a total ban on wearing a targeted religious sign would send a message that certain religious practices do not deserve the same protection as others, which is contrary to the importance that Canadian society places on freedom of religion, right to equality and protection of minorities, ”argues the union grouping. The Law on the secularism of the State also infringes articles 6 (freedom of movement), 27 (preservation of cultural heritage), 28 (equal guarantee of rights for both sexes)
of the Canadian Charter of Rights and Freedoms,
Ichrak Nourel Hak, National Council of Muslims of Canada and Canadian Civil Liberties Association
The National Assembly did not have the competence to prohibit the wearing of a religious symbol in the exercise of certain functions (article 6) and to oblige the face uncovered during the provision and the reception of public services (article 8). “The pith and substance of the law makes it criminal law”… and criminal law is the responsibility of the federal government. Moreover, Law 21 “violates the basic requirements of the rule of law, since the prohibition on 'religious symbols' is excessively vague and impossible to apply uniformly”. "Given the number of institutions and individuals who will be inclined to apply the ban, the application will necessarily be arbitrary and, therefore, contrary to the principle that the law applies to all equally," writes the lawyer Catherine McKenzie.
For law 21
Attorney General of Quebec
The Parliament of Quebec can establish a model of relations between religions and the State which corresponds to the specific reality of Quebec by virtue of the principle of parliamentary sovereignty and the provisions of derogation provided for in the Charters of Rights. "[The] pith and substance [of Law 21] relates to the affirmation of the secularism of the state and, incidentally, the framing of the conditions for exercising certain functions and providing public state services in Quebec," insists the Quebec government. Moreover, groups challenging the legislation have failed to demonstrate a violation of the right to equality based on gender. “The ban on the wearing of religious symbols [for] certain state employees […] is one means among others to affirm the secularism of Quebec state institutions.
Quebec secular movement
It is wrong to claim that Quebec did not have the jurisdiction to adopt Bill 21, that the derogatory clauses are invalid or that it infringes on freedom of religion, but that it cannot be annulled in view of the clauses. derogatory. The MLQ v. Saguenayof the Supreme Court in 2015 does not allow teachers in the performance of their duties to violate their obligation of religious neutrality in public schools. Their lawyers have not proven that they have the right to practice their religion while performing their duties at an educational institution. In short, the religious freedom of state officials, including teachers, ends where the principle of state religious neutrality begins to apply. In matters of state religious neutrality, the highest court in the country ruled in MLQ v. Saguenay that there was no need to carry out a reconciliation of rights exercise.
For the rights of women in Quebec
The criticism of the invalidity of the Law on the Secularism of the State (Law 21) on the grounds that it infringes the equality of women and freedom of religion is unfounded in law. Bill 21 complies with Quebec law, Canadian law and international conventions ratified by Canada. Law 21 compensates for the absence of a legal standard to regulate the exercise of freedom of religion in a free and democratic society. Not only does the law signed by Minister Simon Jolin-Barrette fill the legislative void on secularism and recall that the State's duty of religious neutrality is one of the two faces of religious freedom, but it specifies that secularism is the basis of respect for the right to equality. Law 21 explicitly dictates the State's obligation of religious neutrality by proclaiming the secularism of the State in the Charter of Human Rights and Freedoms. By targeting the prohibition of religious symbols for certain people during their working hours, because they are therefore the guardians of the religious neutrality of the State, Law 21 is measured.
English Montreal School Board
Bill 21 “inadmissibly erases the rights to education in the language of the minority” provided for in section 23 of the Canadian Charter of Rights and Freedoms. It constitutes "an illegitimate constraint on the right of management and the governance of English-language school boards in Quebec". On the other hand, the ban on the wearing of religious symbols targets women, especially those of Muslim faith wearing the hijab, who are prevented from exercising their rights on an equal footing with men. The acquired rights clause which allows teachers on the job before the adoption of Law 21 to wear religious symbols is also problematic. Indeed,
Autonomous Federation of Education
Law 21 is freedom-killing. “Freedom of religion as stated in the Canadian Charter is not only about beliefs, but also about religious practices, such as wearing religious symbols. Thus, a total ban on wearing a targeted religious sign would send a message that certain religious practices do not deserve the same protection as others, which is contrary to the importance that Canadian society places on freedom of religion, right to equality and protection of minorities, ”argues the union grouping. The Law on the secularism of the State also infringes articles 6 (freedom of movement), 27 (preservation of cultural heritage), 28 (equal guarantee of rights for both sexes)
of the Canadian Charter of Rights and Freedoms,
Ichrak Nourel Hak, National Council of Muslims of Canada and Canadian Civil Liberties Association
The National Assembly did not have the competence to prohibit the wearing of a religious symbol in the exercise of certain functions (article 6) and to oblige the face uncovered during the provision and the reception of public services (article 8). “The pith and substance of the law makes it criminal law”… and criminal law is the responsibility of the federal government. Moreover, Law 21 “violates the basic requirements of the rule of law, since the prohibition on 'religious symbols' is excessively vague and impossible to apply uniformly”. "Given the number of institutions and individuals who will be inclined to apply the ban, the application will necessarily be arbitrary and, therefore, contrary to the principle that the law applies to all equally," writes the lawyer Catherine McKenzie.
For law 21
Attorney General of Quebec
The Parliament of Quebec can establish a model of relations between religions and the State which corresponds to the specific reality of Quebec by virtue of the principle of parliamentary sovereignty and the provisions of derogation provided for in the Charters of Rights. "[The] pith and substance [of Law 21] relates to the affirmation of the secularism of the state and, incidentally, the framing of the conditions for exercising certain functions and providing public state services in Quebec," insists the Quebec government. Moreover, groups challenging the legislation have failed to demonstrate a violation of the right to equality based on gender. “The ban on the wearing of religious symbols [for] certain state employees […] is one means among others to affirm the secularism of Quebec state institutions.
Quebec secular movement
It is wrong to claim that Quebec did not have the jurisdiction to adopt Bill 21, that the derogatory clauses are invalid or that it infringes on freedom of religion, but that it cannot be annulled in view of the clauses. derogatory. The MLQ v. Saguenayof the Supreme Court in 2015 does not allow teachers in the performance of their duties to violate their obligation of religious neutrality in public schools. Their lawyers have not proven that they have the right to practice their religion while performing their duties at an educational institution. In short, the religious freedom of state officials, including teachers, ends where the principle of state religious neutrality begins to apply. In matters of state religious neutrality, the highest court in the country ruled in MLQ v. Saguenay that there was no need to carry out a reconciliation of rights exercise.
For the rights of women in Quebec
The criticism of the invalidity of the Law on the Secularism of the State (Law 21) on the grounds that it infringes the equality of women and freedom of religion is unfounded in law. Bill 21 complies with Quebec law, Canadian law and international conventions ratified by Canada. Law 21 compensates for the absence of a legal standard to regulate the exercise of freedom of religion in a free and democratic society. Not only does the law signed by Minister Simon Jolin-Barrette fill the legislative void on secularism and recall that the State's duty of religious neutrality is one of the two faces of religious freedom, but it specifies that secularism is the basis of respect for the right to equality. Law 21 explicitly dictates the State's obligation of religious neutrality by proclaiming the secularism of the State in the Charter of Human Rights and Freedoms. By targeting the prohibition of religious symbols for certain people during their working hours, because they are therefore the guardians of the religious neutrality of the State, Law 21 is measured.
Le Devoir
Marco Belair-Cirino in Quebec
Parliamentary correspondent
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Marco Belair-Cirino in Quebec
Parliamentary correspondent
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