By: Rachel May
The Quebec ban on religious symbols, enacted as “An Act respecting the laicity of the State” and commonly known as Bill 21, has always been controversial. Canadians are both passionate and sensitive about the subject matter, an explosive combination. Combine that with the apparent contradiction of certain rights and freedoms guaranteed by the Charter of Rights and Freedoms and, voilà, controversy ensues.
The law bans persons working for the government or in government-funded roles from wearing religious symbols or face coverings at work (examples include crosses, hijabs, and turbans). It also applies to persons who receive government services. The law expressly states the four principles underpinning the laicity (or secularism) of the state sought to be advanced: the separation of the state and religion, the desire for the state to remain neutral in terms of religion, defending the equality of citizens, and freedom of conscience and religion.
It’s important to understand the genesis of this legislation, and the arguments Quebec has used to justify its enactment.
In 2017 an earlier iteration of the law, Bill 62, that banned the wearing of facial coverings when working or receiving Government services, was struck down in the courts for being unconstitutional. Other historical steps in the process include the Quiet Revolution in the 1960s that promoted the secularization of the government (and its separation from the church) and the Bouchard-Taylor Commission in 2007 that was called in response to mounting tensions between Quebecers and increasing numbers of immigrants.
Most frequently the reasons cited for the law have been based on defence of Quebec’s unique culture and furtherance of provincial unity. This is reflected in the amendments made to Quebec’s Charter of Rights and Freedoms. The amendments included an addition to the preamble expressing the importance of laicity, with language noting the specific importance of laicity when exercising fundamental rights and freedoms, and the addition of state laicity as a “democratic value.”
Premier François Legault has insisted that a majority of Quebecers are supportive of the law, and has argued that it doesn’t conflict with religious freedoms but in fact counteracts extremism within the province. It has been argued too that the law mirrors similar initiatives undertaken in other countries, including France, Germany, and Belgium.
As noted, this is not the first assertion or manifestation of Quebec’s sense of cultural distinctiveness. For example, the Quebec government had previously invoked the notwithstanding clause to shelter An Act to Amend the Charter of the French Language which violated the same sections of the charter in mandating French-only signage.
The laicity statute on its face contravenes two sections of the Charter: section 2b (freedom of expression) and section 15 (equality rights). The Quebec government has responded to this opposition by invoking section 33 of the Canadian Charter of Rights and Freedoms. This section, commonly known as the notwithstanding clause, allows provincial legislatures or Parliament to override specified sections of the Charter for 5 years at a time. This step means the future of the law will more likely be decided in the political arena rather than in a Charter challenge.
The actions taken by the government have been characterized by aggressive positions to reflect public opinion. That public opinion itself seems strengthened by frustration about limits on the province’s identity being imposed by the rest of the country (where limits on individual rights and freedoms in the name of secularism are generally not thought to be appropriate or justifiable). The Quebec government does point to the fact that it made certain compromises, including implementation of a transitional provision to allow public workers who wore religious symbols and face coverings prior to the enactment of the law to continue to do so on the condition they remain in the same job.
The passing of the bill has been met with fierce opposition within Quebec and across the country. Numerous advocacy groups have filed lawsuits against the Act including the Canadian Civil Liberties Association, the English Montreal School board, and the National Council of Canadian Muslims. These groups contend that the law exceeds the province’s jurisdiction, is unclear, and cannot stand based on precedent from the Quebec Act of 1774, which enshrines the right to freedom of religion. The Mayor of Montreal, Valérie Plante, has openly spoken about her discontent with the passing of this bill and how it doesn’t align with her values nor the city’s. Prime Minister Justin Trudeau has denounced the Act and has yet to say if he will challenge it at the federal level.
Groups within Quebec have been vocal in their support of the passing of Bill 21 including the Mouvement laïque Québécois which proposes an expansion of the bill to ban the wearing of religious symbols in private schools and daycares. Political parties like the Bloc Québécois and Parti Québécois have openly supported the act with the latter echoing support for the expansion of The Act to the daycare sector.
The debates have continued to be intense and the future of the law remains unclear. As the court challenges continue, the fate of the secularism law continues to hang in the balance.
Rachel May is a Master of Public Policy candidate at the University of Toronto’s Munk School of Global Affairs & Public Policy. She is interested in social policy particularly gender equity and examining structural and societal biases. Rachel holds a Bachelor of Arts in Psychology from the University of Western Ontario.