Some Quick Notes
2019-12-20 (2020-01-30, link added)
On December 12th 2019, the Quebec Court of Appeal delivered its decision in the case Hak, NCCM and CCLA versus Attorney General of Quebec, N° 500-09-028470-193 (local copy), rejecting the application to suspend Bill 21, pending a ruling on the substance of the issue.
Français Ce billet de blogue est disponible aussi en français sous le titre : Décision de la Cour d’appel du Québec, 2019-12-12.
What is at Stake
The plaintiffs requested that the court suspend two sections of Bill 21, An Act respecting the laicity of the State which implements State secularism in Quebec:
- Section 6 which bans the wearing of religious symbols by some civil servants (as specified in Schedule II of the Bill) while on duty.
- Section 8 which stipulates that civil services must be provided and received with the face uncovered.
In this case, two sections of the Canadian Charter of Rights and Freedoms, which is part of the Constitution Act of 1982, are often referenced:
- Section 28 which guarantees equal rights and freedoms to persons of both sexes.
- Section 33, the famous “notwithstanding” clause, which allows legislators to adopt laws which operate notwithstanding certain provisions of the Charter.
The Judges and Their Decisions
There were three judges, two of whom rejected the plaintiffs’ request for suspension. Thus, the request is rejected by a majority.
- Chief Justice Nicole Duval Hesler, who favoured granting the suspension of section 6 which bans the wearing of religious symbols (but not section 8).
- Justice Dominique Bélanger, who rejected the appeal.
- Justice Robert M. Mainville, who rejected the appeal.
Most of the judgement document consists of the grounds for the decision of each of the three judges.
A Few Observations
- The judges Duval Hesler et Bélanger often assert that Bill 21 discriminates against religious believers! But this is obviously false, because the law applies to all religions.
- The judges Duval Hesler et Bélanger often assert that Bill 21 discriminates against women. But this is obviously false, because the law applies to all persons, whether women or men. However the judge Mainville is not duped. He gives the example of a man who may not wear a turban on a construction site because wearing a hardhat is compulsory; and yet no-one claims that this discriminates against men.
- The situation is obvious: Bill 21 does not discriminate against women. On the contrary, it is religions which discriminate against women. This is especially true of Islam, that most misogynistic of all the great religions, or at least its fundamentalist variant known as Islamism or political Islam. By imposing the wearing of the veil as part of its political programme, Islamism generates greater numbers of women who would defy Bill 21.
- In paragraph , Judge Mainville implicitly recognizes this when he writes that the plaintiffs have abandoned the debate about religious symbols and now limit the debate about section 28 to the Islamic veil and the full veil. Thus, it is not Bill 21 which targets Muslim women. Rather, the plaintiffs themselves (and behind them, Islamism) are targetting Muslim women.
- Why is it that Chief Justice Duval Hesler claims that Bill 21 discriminates against women, when it is obvious that it does not? Remember that this judge has shown herself to be prejudiced in favour of the ideology of multiculturalism. In fact, several complaints against her have been submitted to the Canadian Judicial Council. For example, the Chief Justice suggested, during one of the court sessions, that Bill 21 is a response to « visual allergies » that some people have towards religious symbols. This statement is very similar to the typical arguments of those who oppose any and all bans on religious symbols. They wantonly and completely ignore the argument that such bans are necessary to protect the freedom of conscience of users of public services. Instead, they claim that supporters of such bans are just expressing unhealthy personal whims.
- One of the precepts of secularism, a consequence of the principle of separation between religions and State, is that the State neither recognizes nor privileges religions. Thus, religious beliefs and practices are entirely the responsibility of believers. But those who promote Canadian multiculturalism, on the other had, adopt the opposite attitude: multiculturalists (i.e. communitarians) hold the State responsible for the consequence of religious beliefs and practices and must accommodate them, hence the notorious practise of religious accommodation. Religious believers are thus relieved of all responsibility. This is completely backwards! The idea that the State should submit to the demands of believers is unacceptable. Such a communitarian approach is incompatible with secularism and its implementation in Canada is yet another proof of the necessity of Bill 21. The State must not be held hostage to people who choose to behave like walking billboards for a religion. Those who choose to wear religious symbols are the only ones responsible for their choice.
- The judges talk a lot about infringements of fundamental rights of the employee of the State, but never mention infringements of the freedom of conscience of users of civil services or pupils in public schools. The judges refer only to the “public interest”—a rather vague term—without specifying that such public interest is in fact the need to protect the fundamental rights of users and students. When a teacher wears a religious symbol, he or she is violating the pupils’ freedom of conscience by engaging in religious advertising, i.e. passive proselytizing, thus violating the freedom of conscience of his or her pupils. Rights are not absolute. The rights of one person or group may conflict with those of another, as they do here. The obvious solution is for the teacher to abstain from wearing religious symbols while on the job, but maintaining full freedom off the job.
- The Chief Justice expresses the opinion that the grandfather clause in Bill 21 weakens the government’s case opposing the suspension of the Bill, because the presence of that clause implies that there is no great urgency to apply the ban. Thus, she confirms that including that clause was indeed a very bad idea.
- The grounds given by judge Mainville include a number of excellent points related to the Islamic veil and legislation in Europe and elsewhere relevant to the veil. In paragraph  he writes that “several democratic, liberal societies have adopted such measures” banning the wearing of religious symbols.
- Even though Mainville rejects the appeal and his comments are much more reasonable than those of the other two judges, in paragraph  he seems unfortunately to be rather favourable to the communitarian and antisecular thesis that the State should take religious demands into account.
- Judges Duval Hesler and Bélanger never consider the possibility of removing one’s religious symbol when going to work. And yet, that is exactly what Bill 21 is asking civil servants who wear them to do. Mainville does mention this point on one occasion, I believe.
- Judges Duval Hesler and Bélanger say that Bill 21 may violate section 28 (equality of the sexes) of the Canadian Charter of Rights and Freedoms, even though that is obviously false. Sikh men sometimes wear a turban (whereas Sikh women rarely do), but as judge Mainville points out, this cannot be considered discrimination against men caused by granting unequal religious rights to men and women. Bill 21 does not discriminate against anyone. It applies to all religions and to both men and women.
- Even if Bill 21 violated section 28, It has not been established the Section 28 has priority over the notwithstanding clause 33. The judges in the Court of Appeal discuss this, but reach no conclusion. Thus, it has not been established that Bill 21 violates the Charter. The case is before the courts and will not be heard until the fall of 2020. In the meantime, two court decisions (this one of 2019-12-12, as well as the previous decision of judge Yergeau, 2019-07-18) have already concluded that, if there is any violation, it is not serious enough to merit an injunction suspending the law. The law remains in effect for now.
- Finally, from a Quebec perspective, the Charter is not some sacred document. Rather, it is part of the 1982 constitution which was never approved by Quebec. So Quebec may be legally required to respect it, but not morally required to do so. If ever Bill 21 is struck down, it will be a great injustice, an example of “Might Makes Right.”
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