Hosts Jason C. McLean and Dawn McSweeney talk about Bill 21, Quebec’s proposed Religious Symbol Ban, with special guest Samantha Gold

Also: News Roundup, Survey Says, Dear FTB, Things You Did Not Know (Maybe) and Predictions!

Recorded April 13, 2019 in Montreal

Producer: Hannah Besseau

Hosts: Jason C. McLean and Dawn McSweeney

Special Guest: Samantha Gold, Forget the Box Legal Columnist and Montreal-based artist

Microphone image: Ernest Duffoo / Flickr Creative Commons

Canada is a secular society, but we are a society that has recognized that secular laws and practices can coexist with many people’s religious beliefs and expressions. It is why in Montreal, for example, Jews, Muslims, Sikhs and seculars live together in relative harmony. If Quebec Premier François Legault gets his way, this might all change.

Legault and his Coalition Avenir du Quebec party ran on a platform of promising to bar people who wear religious symbols from positions of authority in the province. They are attempting to do this with Bill 21.

This article is not going to discuss how the CAQ is so clearly pandering to the most disgustingly racist, xenophobic members of Quebec society. It is not going to talk about how the Bill represents the longstanding dispute between welcoming, diverse, multicultural Montreal and the rest of Quebec.

This article is going to talk about what Bill 21 actually contains and the very real fallout for the Quebecois affected if the bill passes. For the purposes of this article, “Quebecois” means anyone living in Quebec (and not just people descended from the original French settlers).

Bill 21 contains important changes to the Quebec Charter of Human Rights, a quasi-constitutional law enacted in the 70s that contains some of Quebec’s strongest protections against discrimination. As the Quebec Charter is only quasi-constitutional, it can be changed by a simple act by the National Assembly.

Bill 21 changes section 9.1 of the Quebec Charter from:

“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 Québec.

Section 9.1 Quebec Charter of Human Rights, current text

to:

“In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, state laicity, public order and the general well-being of the citizens of Québec.”

Proposed version of Section 9.1 of the Quebec Charter of Human Rights

The change thus creates an obligation among citizens to have respect for democratic values, state secularism, public order etc. in the exercise of their fundamental rights and freedoms under the Quebec Charter. It does not, however, abolish section 10 of the Quebec Charter which states that:

“Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”

Section 10 of the Quebec Charter of Human Rights

The Charter also forbids discrimination in “the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment” based on the aforementioned grounds. As these sections of the Quebec Charter remain on the books, any institutions that enforce Bill 21 could find themselves open to legal action under said Charter which also states victims’ rights in such cases:

“Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”

Quebec Charter of Human Rights

Matt Aronson, a lawyer in Montreal says that “if a state funded institution practices discrimination as an employer, causing damages to a citizen, it’s possible that not only could a citizen sue to have the discrimination stopped, they may even be able to sue for punitive damages. Now, there is a section of the Quebec Charter that allows for rights and freedoms to be limited in scope by laws, but that would be a fairly difficult retort to state sanctioned discrimination.”

As a result, the government can and will find itself open to costly lawsuits if Bill 21 passes as increasing numbers of people have publicly committed to fighting back.. The English Montreal School Board, for example, has publicly stated that they will not enforce the Bill, and a public protest in scheduled on Sunday, April 7th, in Montreal.

True to Legault’s election promise, Bill 21 bars government employees from wearing religious symbols in the exercise of their functions. This is the list of employees who will be affected – I am including the full list so people fully understand how many will be hurt if this law passes:

  • Judges, clerks, deputy clerks, and sheriffs
  • Members of the Comité de déontologie policiere – the group responsible for holding police to account for misconduct
  • Members of the Commission de la fonction publique
  • Members of the Commission de la protection du territoire agricole
  • Members of the Commission des transports du Quebec
  • Members of the Commission Municipale
  • Members of the Commission quebecoise des liberations conditionelles
  • Employees of the Regie de l’energie
  • Employees of the Regie d’alcools, courses, et jeux
  • Employees of the Regie des marche agricoles et alimentaires du Quebec
  • Employees of the Regie du batiment du Quebec
  • Employees of the Regie du Logement
  • Members of the Financial Markets Administrative Labour Tribunal
  • Members of the Administrative Tribunal of Quebec
  • Chairs of the Disciplinary Council
  • Commissioners appointed by the government under the Act Respecting Public Inquiry Commissions and lawyers and notaries working for said commissioners
  • Arbitrators appointed by the Minister of Labour in accordance with the Labour Code
  • The Quebec Justice Minister and Attorney General
  • The Director of penal prosecutions
  • Lawyers, notaries, and penal prosecuting attorneys
  • Peace officers who exercise their functions mainly in Quebec
  • Principals, vice principals, and teachers of educational institutions under the jurisdiction of the school boards

It must be noted that the law does contain a grandfather clause allowing all current employees wearing religious symbols to keep their current jobs. That said, anyone hoping for advancement would have to choose between their faith and a promotion to even be considered a candidate for one.

In addition to barring people wearing religious symbols, Bill 21 also demands that some government employees keep their faces uncovered in the exercise of their functions, a provision clearly meant to exclude women who choose to wear the niqab. Those affected include:

  • Members of the National Assembly (MNAs)
  • Elected Municipal officers except in certain Indigenous communities
  • Personnel of elected officers
  • Personnel of MNAs
  • Personnel of the Lieutenant Governor
  • Commissioners appointed by the government under the Act respecting public inquiry commissions
  • Persons appointed by the government to exercise a function within the administrative branch including arbitrators whose name appears on a list drawn up by the Minister of Labour in accordance with the Labour Code
  • Peace officers who work mainly in Quebec
  • Physicians, dentists, and midwives
  • Persons recognized as home childcare providers
  • Anyone else designated by the National Assembly
  • Employees of government departments
  • Any bodies receiving government funds
  • People and bodies appointed in accordance with the Public Service Act
  • Employees of municipalities, metropolitan communities, and intermunicipal boards, and municipal and regional housing bureaus with the exception of some in Indigenous communities
  • Employees of Public Transit Authorities
  • Employees of school boards established under the Education Act
  • Employees of public institutions governed by the Act respecting health services and social services
  • Employees of bodies in which most of the members are appointed by the National Assembly
  • Institutions accredited under the act respecting the Ministere des Relations Internationales
  • Private family-type resources governed by the Act Respecting Health Services

In addition to barring certain government employees from having their face covered in the exercise of their functions, the law also requires certain people to show their faces in order to receive government services “where doing so is necessary to allow their identity for security reasons.”

The law does make an exception where the face is covered for health reasons, a handicap, or requirements tied to their job. The law also says that there will be “no accommodation or derogation or adaptation,” which means there are no exceptions anywhere.

Bill 21 not only alters the Quebec Charter of Human Rights to exonerate the government from open acts of discrimination, it also applies the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms. The Notwithstanding Clause allows governments to bypass articles 2 and articles 7 to 15 of the Canadian Charter of Rights and Freedoms simply by including in a discriminatory law an article stating that said law applies notwithstanding the Charter.

Articles 2 of the Canadian Charter deal with fundamental freedoms including the freedom of conscience and religion, and articles 7 to 15 deal with legal rights including the rights to life, liberty, and security of the person, equal treatment before the law, and the right to be presumed innocent until proven guilty. Article 30 of Bill 21 states that it applies notwithstanding these articles of the Canadian Charter of Rights and Freedoms, though the Notwithstanding clause has a failsafe in it requiring the government to renew the law in five years or open itself to legal challenges when that time expires.

That said, all hope is not lost. The law is currently tabled, meaning that the National Assembly has begun to consider it. It has not, as of the publication of this article, passed.

That means there is still time to resist. If you value our province’s protections against discrimination, contact your members of the National Assembly and pressure them as you never have before.

Point out that Quebec has a labour shortage and alienating and barring people won’t work to solve it. Tell them that the scores lawsuits they’ll face will be more expensive than any benefit they hope to gain if the Bill passes.

Tell them that if they want a truly secular state, all towns and streets and institutions bearing the names of Catholic saints should be changed immediately. Let them know how ridiculous their position is.

The fight is only over if we the people give up, so keep fighting.

Featured Image: Screengrab of François Legault defending Bill 21 in a Facebook video

Today, the Plante Administration announced that after City Hall renovations are complete, they won’t put the crucifix back in the City Council chambers. Yes, this move is about secularism of the state, as the Mayor made clear:

“The crucifix is an important part of Montreal’s heritage and history, but as a symbol, it does not reflect the modern reality of secularism in democratic institutions.”

Montreal Mayor Valérie Plante at a press conference on March 20, 2019

Plante also reiterated that she still opposes Quebec Premier François Legault’s plan to ban public sector employees from wearing religious symbols like kippahs and hijabs. The state, for her, and for me, and for anyone who really thinks it through, is the democratic institutions, like the City Council. chambers and not the wardrobe of teachers and bus drivers who work for the government.

Or, to put it in other words, a council member wearing a crucifix and, say, a security guard wearing a turban in the council chamber are just two people expressing their personal beliefs through what they wear. A religious symbol on the wall, though, is the state aligning with the particular religion the symbol comes from.

Not everyone sees it this way. I’ve already seen quite a few internet comments decrying the move as an attack on our traditions and I’m sure there will be talking heads on TV tonight and columnists in Quebec’s dailies tomorrow pissed off about what Plante did as well.

I’m sure that a good chunk, if not most, of the people coming out in opposition to removing the crucifix today will turn out to be the same people who were screaming religious neutrality of the state when the topic was Legault’s plan. I’ve already seen some commenters try and spin it that Plante is just anti-Christian and pro-Muslim.

While few will be that openly bigoted, those that previously supported the religious symbol ban and now oppose the move to remove the crucifix should admit that it isn’t about secularism at all, but about assimilation. They just lost any progressive secularist cover they may have enjoyed until now.

Those that support Plante’s move, want to get rid of the crucifix in Quebec’s National Assembly as well and support Legault’s ban, well, at least you’re consistent. Those that oppose both the symbol ban and removing the cross, you’re consistent as well.

Those like me, and now Montreal’s mayor, who don’t want the state to dictate what teachers can wear and think a government chamber is no place for a religious symbol, our logic makes perfect sense.

Those who think we should ban all religious symbols but the Christian ones, you’re not secularists, you’re cultural fundamentalists. And you just lost your political cover.

One of the cornerstones of any liberal democracy is a judiciary that is independent, fair, and free from bias. Unfortunately, judges are human beings and therefore vulnerable to having the same prejudices many of us have.

An ideal government will name judges that can separate their own preconceptions from what is fundamentally right and legal in rendering their decisions. Unfortunately, this is not what happened in the case of former Alberta judge Robin Camp, and it is clearly not what happened in the case of Judge Eliana Marengo.

Her story is one that shows the dangers of aggressive Quebec Islamaphobia and racism masquerading as legal secularism.

In February 2015, Rania El-Alloul went to court to get her car back after it had been seized by the SAAQ. The issue was a simple one, but Judge Marengo turned a molehill into a mountain by refusing to hear El-Alloul’s case unless she took off her headscarf, inappropriately comparing the hijab to hats and sunglasses which are not permitted in court.

El-Alloul was not wearing a headscarf. She was wearing a hijab mandated by her faith, which she politely told the judge. Judge Marengo in a recording of the proceedings said that the court is a secular space, mentioning that there is no cross on the wall of the courtroom. She then reprimanded El-Alloul, refusing to hear her case because she was “not suitably dressed” as per the regulations of the Court of Quebec.

As there is no record of Judge Marengo denying others their day in court due to them wearing visible crosses, clergy collars, or a kipa, it is most likely she refused El-Alloul because she is Muslim.

Judge Marengo gave El-Alloul two options, she could take off her “headscarf” or request a postponement and consult a lawyer. El-Alloul refused to remove it and thus far, her case has yet to be heard.

When the story broke, numerous complaints were made to the Quebec Conseil de la Magistrature (“the Council”), the organization responsible for disciplining provincially appointed judges in Quebec. The complaints came not just from El-Alloul herself, but from many others unrelated to the case who felt the judge’s conduct was inappropriate of her high office.

Prime Justin Trudeau expressed his disapproval of Marengo on Twitter, saying:

In February 2016, the Council decided to form a committee to investigate Judge Marengo’s conduct. Marengo, for her part, tried to block the investigation into her conduct by challenging the legitimacy of the Council itself. She claimed that the refusal to hear El-Alloul amounted to a judicial decision that must be addressed in an appeal and that to investigate her via the Council would be a violation of judicial independence.

Fortunately, the Superior Court of Quebec sided with Council the following year. Marengo appealed the decision but the Quebec Court of Appeal agreed with the Superior Court.

An investigation into Judge Marengo’s conduct is now underway or will be soon.

How exactly does the Quebec Conseil de la Magistrature work?

It’s a lot like the Canadian Judicial Council responsible for investigating federal judges.

In addition to administrative duties and a general responsibility to improve the justice system in the province, the Quebec Conseil de la Magistrature is responsible for investigating the conduct of judges sitting on the Court of Quebec, the Professions Tribunal, and the Human Rights Tribunal. It has 16 members consisting of eleven judges, one justice of the peace, two lawyers, and two members of the general public.

They generally conduct investigations in response to complaints filed with them. Complaints to the Quebec Council can be filed online via their website.

Like their federal counterpart, the Conseil cannot overturn judicial decisions or verdicts as those have to go through the appeals process. All the Quebec Council can do is reprimand a judge or in the worst cases, recommend to the government that the judge be removed from the bench. In their investigations, the Council must consider the Judicial Code of Ethics, a set of rules governing the behavior of judges in Quebec.

Judge Marengo will likely be investigated with regards to whether her conduct violated articles two and eight of the Judicial Code of Ethics which have been used to reprimand the racist behavior of judges in the past. They read as follows:

  • 2. The judge should perform the duties of his office with integrity, dignity and honour.
  • 8. In public, the judge should act in a reserved, serene and courteous manner.”

Judge Eliana Marengo’s behavior towards Rania El-Alloul was unacceptable. Not only did it deny an innocent woman her day in court, but it is also against the values of diversity and freedom from discrimination Quebec supposedly embraces.

Here’s hoping the Council agrees.

* Featured image of the Palais de Justice in Montreal by Jeangagnon via Wikimedia Commons

Off all the asinine comments made by Mme Marois in defense of her fatally flawed ‘Québec charte des valeurs’ (daycare workers wearing hijabs are threatening our children, comparing it to Bill 101, etc.) I think the one I want to discuss here is her rather unfortunate using of the French model of “laiçité” as an example for Québec to follow in integrating its Muslim population.

The notion, that French secularist traditions have led to some sort of social harmony between French society and millions of Arab speaking Muslim Algerian, Tunisian and Moroccan immigrants, the vast majority of which arrived in France during the post-war period at the invitation of previous French governments to help fill jobs created by the boom of recovery in Europe’s war-torn economies, is simply laughable.

Anyone who has been paying attention to recent French history knows that unemployment rates among the Arabic Muslim minority (one in every 13 French citizens describes themselves as Muslim) are much higher than they are among the general population. There has also been a rise, though not due only to socio-economic conditions, of homegrown terrorism and racial tensions in France’s major cities (for example the riots of Clichy-Sous-Bois back in 2005).

French secularism is very different from North America’s, or even Quebec’s version of the institution, owing to the dramatically different historical, political and legal contexts in which it evolved. Even Marois seems to vaguely grasp this fact, saying that “Quebec will develop its own model based on our values and experiences.”

For starters, France has essentially been thoroughly secular at the governmental level since the French Revolution in 1789. But, more to the point, their version of secularism makes no exceptions for Christian symbolism in the public sector (i.e. no cross hangs in their National Assembly). Also, it should be said, that the measures being proposed by the PQ are not as drastic as those that were imposed in France, where there are no niqabs allowed in public whatsoever, and female students are not even allowed to wear hijabs at state schools.

But Marois’ ignorance of the French model that ostensibly inspired her bill is not confined to French history. She also spectacularly misreads British multiculturalism as a main cause of British terrorism, in the process unwittingly spewing the same claptrap as such noble political parties as the racist British National Party and the ultra-right wing UK Independence Party. I suppose it has never occurred to her to look at the rest of Canada as a successful model of multiculturalism?

Marois either doesn’t appreciate the obvious differences in context between Western Europeans societies and ours with respect to integrating religious minorities, or doesn’t care to. Irrespective, she will pursue her destructive agenda to the bitter end.

Perhaps we on the federalist side of the political spectrum should rejoice. This could be the final nail in the coffin for an already out-of-touch government with no economic or job creation strategy to speak of. Maybe one day we will look back on this moment as the kind of desperate gamble to remain relevant that resulted in the Republican Party in the US becoming beholden to the overwhelmingly white lunatic fringe of right wing politics that the Tea Party represents in that country.

But when we see the hatred, taking some of its cues from the rhetoric of the Parti Quebecois, starting to poison everyday life the way it did for the victim of a racist tirade on a bus in Montreal recently, it’s awfully hard to feel smug about the situation.

The real targets of the Charter of Quebec Values are the CAQ, Quebec Solidaire and the NDP. Muslims, Sikhs, Jews and Orthodox Christians are just innocent victims caught in political crossfire.

charter of quebec values protestFor decades, Quebec politics split into two camps. Federalists and most anglos voted Liberal provincially and either Liberal or Conservative federally. Soverigntists voted PQ and Bloc.

Progressive voters, especially progressive anglos, didn’t have much choice at all. With the PQ leaning increasingly to the right on social and economic issues, even progressive soverigntists had to hold their noses when voting PQ.

I hate to generalize, but in this case I have to. The PQ has always had two political bases: left-leaning secular soverigntists living predominately in urban areas and ultra-nationalist Catholics in the suburbs and countryside who veer right politically, sometimes to the point if xenophobia.

The nationalist base also flirted with homophobia when openly gay Andre Boisclair was leader. The PQ fell to third place for the first time ever as nationalist right wing voters found refuge in the ADQ, who only had to not rule out the idea of a separate Quebec.

The current incarnation of the ADQ, the Coalition de l’Avenir du Quebec, are separatist at the core but promise not to hold a referendum right away. This allows them to pick up right wing anglos fed up with the Liberals but also take hard right nationalist votes away from the PQ.

Meanwhile, upstart leftist sovereignist parties like QS and Option Nationale threaten to take soft separatist votes. Throw in some progressive federalist voters and lefties who care more about social policy than which flag is flown and the PQ stands to lose seats in their urban enclaves.

In the last federal election, progressive soverigntists who realized Ottawa was the wrong place to fight for independence banded together with progressive federalists and decimated the Bloc, taking a bunch of Liberals down too. The Orange Wave that saw the NDP take most of the seats in Quebec was part love affair with Jack Layton and part rejection of the status quo of Quebec politics.

charter sign

It’s that status quo that the PQ desperately needs to reestablish both provincially and federally. Enter the Charter, with it’s rules against public sector employees wearing “ostentatious” religious attire.

Small crosses are okay as are Star of David and Muslim Crescent trinkets which have no religious meaning whatsoever. Burqas, niquabs, turbans, yarmulkes, kippahs and Orthodox Christian crosses (generally larger than the Catholic ones) aren’t.

The target audience is clearly the right-wing nationalist side of the PQ’s base, but Marois and company probably figure that the reasonable accommodations crowd will go for a ban on turbans and burquas with little prodding. So the marketing push is focused instead on secular leftists, talking about women’s rights and the neutrality of the state.

Arguing that a law which targets specific groups is neutral is a stretch at best, explaining how banning a Jewish man from wearing a kippah or a Sikh from wearing a turban has anything to with women’s rights, meanwhile, is downright impossible. But it doesn’t matter. This strategy gives progressive PQ supporters enough political cover to defend their party without having to admit they support far-right social conditioning.

They’ll also be able to criticize QS, a feminist party, who opposed the charter on principle. Expect a repeat of the baseless accusations that surfaced before the last election, claiming that QS is just a puppet of the NDP.

charter of quebec values ad

Thomas Mulcair opposes the Charter, as do Justin Trudeau and Stephen Harper. In fact, the only federal party supporting it is the Bloc. No surprise they booted Maria Mourani for speaking out against it (and in the process, kicked out a fifth of their caucus and their only female MP and their only representation from the island of Montreal).

The CAQ thinks the Charter goes too far, but does support it when it comes to government employees in a position of power. Their position, squarely seated on top of the fence, makes sense: the Charter plays to right wingers who they covet but it’s also bad for business, their other key demographic.

The Quebec Liberals, predictably, are opposed to the Charter outright. The PQ’s traditional opponent in stark opposition, just like old times.

The PQ’s endgame is not separation, it hasn’t been for years. The threat or promise of it is just another tool to achieve their real goal: bringing back those good ole days when it was them and the Bloc versus the Quebec Liberals and the rest of Canada.

Now Marois can claim that only the PQ and the Bloc speak for Quebec and its values. All she had to do was redefine the values of half her base as those of Quebec.

It doesn’t matter how many people are discriminated against and leave Quebec. It doesn’t matter how many people are accosted in public for no good reason. The only thing that’s actually valuable to her and her party is for Quebec politics to return to the status quo.