Quebec is proposing a religious symbols ban. Law experts say it violates charter rights
Quebec’s government tabled controversial legislation Thursday, proposing a ban on public sector employees wearing religious symbols at work.
The ban, which would apply to several professions — including teachers, judges, police officers, prison guards and Crown prosecutors — has been the subject of criticism for several months.
Many civil rights advocates and legal professionals say it would infringe on the charter rights of those who choose to wear symbols such as the hijab, kippa or turban.
The bill, however, would fulfil a major election pledge of the Coalition Avenir Québec. Premier François Legault has said the majority of Quebecers support the ban.
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Titled “An act respecting the laicity of the state,” the bill outlines workplaces that would no longer allow religious symbols for employees. It contains a provision permitting current employees in those positions to continue wearing religious symbols.
The government has said its measures are based on four principles: “the separation of state and religions, the religious neutrality of the state, the equality of all citizens and freedom of conscience and freedom of religion.”
Legault has insisted the bill is not discriminatory. On the contrary, he said it will “unify” Quebecers.
In a bid to appease opposition, the government announced it will remove the crucifix that has hung above the Speaker’s chair in the National Assembly since 1936.
Benjamin Berger, a professor at Osgoode Hall Law School, told Global News that he believes the proposal breaches Section 2a and Section 15 of the Canadian Charter of Rights and Freedoms.
Section 2a dictates “freedom of conscience and religion,” while Section 15 deals with equality without discrimination.
“This is an act that I take to be fundamentally discriminatory in nature and fundamentally one that offends freedom of religion rather than advancing it,” Berger said.
Natasha Bakht, an associate law professor at the University of Ottawa, also noted the bill contains violations of charter rights that guarantee religious freedoms.
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Bakht explained that it shouldn’t matter what “trained and competent” employees wear while doing their jobs.
“When you go to get your passport, the person who is helping you, the fact that they are wearing a turban shouldn’t have any impact on me filling out my passport application,” she said, raising an example.
Civil rights concerns
The proposal has prompted criticism from civil rights groups.
The National Council of Canadian Muslims is among those that argue this bill is misguided and discriminatory.
Leila Nasr, who works with the NCCM, told Global News the organization has heard from several concerned residents.
“We’re getting calls from people who are reaching out saying, ‘What am I supposed to tell my two daughters who are studying education in university right now? Do I tell them they’re not allowed to have their dream job?'” Nasr said.
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Nasr said that the organization hopes the government will engage in dialogue over the bill, but that has yet to happen.
“Unfortunately, what the Quebec government is doing right now is we feel they’re having conversations about us, but not with us.”
Nasr said NCCM is now advocating for political leaders to call out xenophobic, racist and Islamophobic rhetoric for what it is — “ignorant and hurtful.”
She added that the organization is “very seriously” considering legal options available in stopping the bill from becoming law.
One Quebec school board has already vowed to disobey the potential law. The English Montreal School Board adopted a motion Wednesday, declaring its refusal to implement legislation restricting the wearing of religious symbols.
Julien Feldman, chairman of the EMSB’s human resources committee, said the board has never received a complaint from a student or parent about a teacher’s religious symbol.
“This proposed legislation would be contrary to the values the EMSB teaches its children, in particular, values of diversity, acceptance, tolerance and respect for individual rights and religious freedoms,” Feldman said in a statement.
The board’s resolution came a day after a major teachers’ federation — Fédération autonome de l’Enseignement, which represents 43,000 — filed a lawsuit to stop government attempts to count the number of teachers who wear religious symbols.
Despite the criticism, Bakht noted that the bill will likely become law. The ruling Coalition Avenir Québec government has a majority, and the bill invoked the notwithstanding clause, which helps shield it from a court challenge.
Bakht explained that a notwithstanding clause dictates a government can legislate in a particular area, notwithstanding — or regardless — of the fact that a bill has an impact on charter rights. But the clause does have a time limit, typically of five years.
She noted the clause makes it difficult for civil rights organizations to argue a violation of charter rights and said the use of the clause itself is a mea culpa of sorts.
“I think the fact that the government is using the notwithstanding clause indicates that they know this is a violation of Charter rights and they’re trying to prevent that process from even beginning,” she said.
The clause has been used in the past to protect French culture and language rights.
“You can use the argument that it makes sense to protect French language. It’s a very difficult and different argument to say we’re going to use this notwithstanding clause to prevent minorities — in this case, people who wear religious symbols — from accessing supports,” she said.
Quebec’s Immigration, Diversity and Inclusiveness Minister Simon Jolin-Barrette said Thursday that the notwithstanding clause has been used more than 100 times in Quebec, and the province is within its rights under the Canadian Constitution to use it with Bill 21.
“Quebec is a nation,” he said.
He called it “perfectly reasonable” that a choice about the secular nature of the state should be decided by the Quebec legislature alone. “That’s why we are using the [notwithstanding] clause,” he said.
Can the federal government do anything?
Prime Minister Justin Trudeau spoke about the bill just before it was tabled on Thursday, saying he plans to carefully study its contents before commenting further.
Trudeau signalled that he had concerns about infringing on religious freedoms.
“Canada, and indeed Quebec, are places where we are a secular society, we respect deeply people’s rights and freedoms, including freedom of expression, freedom of conscience, freedom of religion,” the prime minister said while in Halifax.
“It is unthinkable to me that in a free society, we would legitimize discrimination against citizens based on their religion,” Trudeau added.
Berger noted he expects there to be conversations about the use and scope of the notwithstanding clause in this case.
The professor also said he hopes the federal government will provide moral leadership.
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“Fundamental response of political leadership in a moment like this is to provide clear legal and moral leadership on what the right kind of thing to do for a government is and isn’t,” he said.
“Likely the most important responses to the use of the notwithstanding clause by the Liberal government will be political in nature,” he said.
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— With files from the Canadian Press
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