On March 28, 2019, the Coalition Avenir Quebec government tabled Bill n°21: An Act respecting the laicity of the State to fulfill an election promise to ensure the religious neutrality of the state and prohibit many public sector employees from wearing religious symbols at work. The proposed legislation is being studied in parliament at this moment.
After the failed attempts of the Parti Québécois with its charter of values in 2014, and the Liberal Party with Bill 62 in 2017 with an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (chapter R-26.2.01), it is the turn of the Coalition Avenir Quebec. The CAQ’s Bill 21 takes into account the existence of an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies in its language.
It is important to note that Bill 21 uses the term “laicity” which is often translated as secularism, but does not quite have the same scope. Before we discuss the key points of Bill 21 and understand my position on the Bill, it is important to understand what “laïcité” (laicity in English) means in the context of Bill 21.
Lise Ravary, a columnist at Le Journal de Montréal wrote an interesting opinion piece in the Montreal Gazette last April, explaining what “laïcité” is and what it is not. She states in her article that,
“Laïcité […] Often translated as secularism, it should not be confused with the type of secularism that rejects religion. Laïcité defines a place for religion in society.” Moreover, “laïcité means separation of church and state, freedom of religion, the right to express one’s faith while respecting public order and institutions.”
It is a position that religious beliefs should not influence public and governmental decisions. To summarize, in a laic state there’s no official religion. As an example, Quebec is not a Christian province based on the Catholic faith. Laws are not based on religious law and instead, freedom of, and from religion and freedom of conscience are part of the law.
How is “laïcité” (laicity in English) defined in Bill 21?
The preamble of Bill 21 sets out the four core principles for “laïcité” of the Province of Quebec and it includes:
- The separation of State and religion;
- The religious neutrality of the State;
- The equality of all citizens; and
- Freedom of conscience and freedom of religion
The preamble provides that parliamentary, governmental and judicial institutions are required to respect these principles as part of their mission.
Prohibition on wearing religious symbols
Bill 21, if enacted, will ban public workers in positions of authority from wearing religious symbols in the exercise of their functions.
Schedule II of the Bill provides a list of persons subject to the prohibition, which includes a broad category of government employees, such as public school teachers and principals but not the educators in daycares and daycare services at schools, Crown prosecutors, police officers, prison guards, judges and peace officers, stewards, commissioners, arbitrators and others. Therefore, if the bill is passed, police officers, teachers and principals, judges, lawyers and many others will be required to remove all religious symbols when they are in office.
The Bill specifies however, that the Conseil de la magistrature is responsible for translating the state’s secularism requirements for the judges of the Court of Quebec, the Human Rights Tribunal, the Professions Tribunal and the courts, Municipal courts and justices of the peace.
The Bill contains provisions permitting current employees in those positions to continue wearing religious symbols without being fired, as long as they perform the same function within the same organization. The Bill will apply to future employees who will be hired, starting March 28, 2019, when the Bill was tabled.
Providing and receiving services with faces uncovered
Bill 21, if enacted, will require that employees working for a public body must exercise their functions with their faces uncovered. Schedule I of the Bill lists the public bodies that are included, and Schedule III of the Bill provides a list of members of the public body required to provide services with their faces uncovered.
It also requires citizens to uncover their faces to receive a public service for identification or security purposes.
Exceptions and accommodations
The Bill states that no accommodation or other derogation or adaptation, except those provided for in this Act, may be granted in connection with the provisions concerning the prohibition on wearing religious symbols or concerning the obligations relating to services with one’s face uncovered.
I am a bit perplexed with this provision in light of the court challenges stemming from a similar provision under the Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies. Maybe by not stating expressly the words Nigab, Hijab, Burqa or Chador is to ensure that a particular group or religion is not targeted and is an inclusive policy not requiring the need for accommodation. I don’t know.
Bill 21 does not provide any exceptions or any form of accommodation and repeals the provision of accommodation framework on religious grounds to be provided in certain bodies to people affected by the Act under the Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (chapter R-26.2.01.
It also states that a provision of a collective agreement, group agreement or any other contract concerning conditions of employment that is incompatible with the provisions of this Act is absolutely null.
The government as the employer cannot practise discrimination in the workplace based on religion, as stipulated in section 10 and 16 of the Quebec Charter of Human Rights and Freedoms, therefore forcing the government to respect its duty to reasonably accommodate, despite Bill 21 stating that no accommodation or other derogation or adaptation will be provided.
Incorporating the notwithstanding clause
The Bill also invokes the notwithstanding clause (section 33 of the Canadian Charter of Rights and Freedom) to shield it from legal challenges over any rights violations under the Canadian Charter of Rights and Freedoms on the basis of the history, social values and specificity of Quebec as being distinct from the rest of Canada.
Section 33 allows provincial or federal authorities to override certain sections of the charter for a period of five years. In particular, it mentions sections 2 and 7 to 15 of the Charter, which pertain to legal rights. Section 2 protects the “fundamental freedoms” of individuals, including freedom of conscience and religion. Therefore, if the notwithstanding clause is invoked, freedom of religion and the right to equality could not be used to challenge the constitutional validity of banning the wearing of religious symbols at work or having your face uncovered to provide or receive services.
Bill 21 and the Quebec Charter of Human Rights and Freedoms
If the Bill is passed, amendments will be made to the Quebec Charter of Human Rights and Freedoms to reflect the fact that “fundamental rights and freedoms must be exercised while respecting the laicity of the state.” In particular, the following line would be amended to include “state laicity” after democratic values in this sentence: “In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.”
Consultation on Bill 21 and what’s next
The Minister of Immigration, Diversity and Inclusiveness is responsible for administering Bill 21 when enacted as well as its predecessor, An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (chapter R-26.2.01)
The sitting government will hold several consultations on this issue in the coming weeks.
The opposition to the National Assembly unanimously criticized Bill 21. The opposition Liberals argued that the Bill goes too far and would hurt, in particular, Muslim women who wear the hijab.
The Prime Minister of Canada, Justin Trudeau said “for me, it is unthinkable that a free society would legitimize discrimination against anyone based on religion.”
In addition, a motion was passed with the support of all political parties to have the crucifix (considered the patrimonial symbol) that has been installed in the Salon Bleu of the National Assembly since 1936 relocated to a different part of the building. However, a poll conducted by Leger Marketing from March 22 to 26 on behalf of the CAQ indicates that sixty-three percent of citizens believe that “crosses and other religious symbols that adorn public institutions should remain in their place because they are part of the heritage of Quebec.
The results of the survey also indicate that a significant proportion of Quebeckers (63 percent) believe that secularism is desirable in Quebec. People aged 55 and over are the most likely to demand state neutrality with 77 percent support. Among young people aged 18 to 34, this issue is much less important (51 percent).
After having read Bill 21 again, as I did for its predecessors, I do not find it as alarming as it has been presented in various newspaper articles and press releases. Although, I can understand why others might feel differently, it would be nice to finally have this public discussion and debate rationally without hysteria, screams of discrimination and racism and intolerance, or throwing insults at those who do not oppose Bill 21.
A discussion about the separation of state and church, of the “laïcité” of the state, is an important and legitimate one that needs to happen. It is the responsibility of everyone to grasp the full extent of it and to make their comments, with all due respect.