Blog 108: The Burden of Proof is on Opponents of Bill 21

David Rand

2019-05-27

In the debate over Quebec’s Draft Bill 21, An Act respecting the laicity of the State—if it can really be called a debate, given the outrageous allegations and gratuitous accusations constantly directed against supporters of the bill— one of the so-called arguments often used by opponents of the Bill is that of absence of proof. That is, according to opponents, the proposed ban on religious symbols worn by public servants and teachers is not based on any impact study which would prove it necessary. No study indicates a problem with proselytizing or bias on the part of State employees while on duty. No study proves that such symbols have an undue influence on public service users or students where the ban is proposed.

During the period in which Quebec schools were secularized, did anyone insist on having studies of the impact of the large number of crucifixes in schools before removing them? Did anyone ask for studies of the influence of sisters’ habits worn by teachers at the time, before such habits were relegated to history? Did legislators insist on having conclusive scientific data before adopting the provisions of the Public Service Act which require that public servants behave with reserve and discretion in order to maintain political neutrality?

In 2008, did the Bouchard-Taylor (B-T) Report require data proving the influence of the crucifix hanging in the legislative chamber of the National Assembly before recommending its withdrawal? Did the Report insist on having studies done before recommending the ban on religious symbols worn by public servants in positions of coercive authority? (Bill 21 would extend that ban to include teachers.)

The answer to all of the above questions, to the best of my knowledge, is no, no such studies or data were required or envisaged in any of those cases.

Hearings of the parliamentary committee studying Draft Bill 21 recently drew to a close at the National Assembly in Quebec City. The various intervenors expressed widely differing views. According to Gérard Bouchard, co-author of the B-T Report, the assertion that religious symbols worn by teachers might have negative effects is unsupported by any rigorous data or study.

The Rassemblement pour la laïcité (RPL or Alliance for Secularism), for its part, replied to Monsieur Bouchard’s concern, in its brief submitted to the committee and supporting Draft Bill 21, by making the following important observation:

…if judges, police and prison guards are banned from wearing religious symbols, this is in recognition of the fact that such symbols send a clear message which violates the religious neutrality of the State. But why should we be concerned for the freedom of conscience of defendants and prisoners only? Is the freedom of conscience of children and their parents somehow of lesser importance?

Professor Guy Rocher, a veritable icon of secularization in Quebec, especially the schools, also testified before the committee in support of the Bill. The minister Simon Jolin-Barrette, responsible for Draft Bill 21, asked him how he would respond to Monsieur Bouchard’s demand for prior empirical data as justification for implementing a ban on teachers wearing religious symbols. His answer: what Monsieur Bouchard is demanding is methodologically impossible for it to be scientifically valid. Monsieur Rocher made the following recommendation:

We must fall back on what is known in the fields of environmental and medical research as the precautionary principle… When in doubt, we must protect against possible risks. I think that this principle applies to the case of religious symbols in schools. Given the uncertainty, we must protect pupil and parents and other colleagues against possible effects.

In other words, for Guy Rocher, prevention is the best policy.

There is a fundamental principle which seems to have been forgotten or neglected by participants in this debate: the principle of the burden of proof. If we compare the plausible risks of either banning or not banning religious symbols worn by teachers, it is obvious that failing to ban them would result in much greater risks.

Indeed, a ban would involve a constraint on teachers’ freedom of religious expression during their working hours only. This would be an eminently reasonable extension, although less constraining, than the discipline which currently applies to political expression by public servants.

On the other hand, without the ban, the religious neutrality of teachers would be broken and separation between religion and State violated. Religious symbols worn by a number of teachers, a number which may very well increase considerably over time, would constitute a form of religious advertising, proselytism and exhibitionism and would compromise the freedom of conscience of pupils, and indirectly their parents. Such symbols, imposed on children as a captive audience, would promote a variety of religions, religions which regularly transmit values incompatible with basic human rights and are sometimes—even often—explicitly misogynistic, homophobic or racist. Furthermore, it is the duty of teachers to serve the education and development needs of their students. These students are the reasons schools exist, they are much more numerous and vulnerable than teachers and their rights take priority over those of teachers.

Thus, if proof is required, then the burden of providing that proof falls necessarily on the opponents of the ban than it does on supporters of Bill 21.

We see the wisdom of Guy Rocher’s warning. Even if it were possible to perform rigorous scientific studies in this field (which Rocher doubts, as do I), such research would be rather difficult to conduct and would require significant resources and especially time. In any case, the precautionary principle which he proposes is very relevant here. Given the much greater risks associated with failing to impose the ban, this precaution leads us decidedly to the option of banning religious symbols worn by teachers as stipulated by Bill 21. Or, to express it in other words, a comparison of the relative risks strongly indicates that the opponents of Bill 21 have the burden of proving the validity of their opposition.