The Act respecting the laicity of the State (Bill 21) Before the Courts
Summary of the third week, 16^th – 20^th November 2020
Quebec Superior Court

David Rand

2020-11-27

In the Same Series:

• What Was Left Unsaid at the Trial of Bill 21 ^[1]
• Does the EMSB Condone Child Abuse? ^[2]
• Oral Arguments of AFT—Courtroom Log of Hak versus AGQ ^[3]
• An Orgy of Hateful Hyperbole—Courtroom Log: Week 5 ^[4]
• Courtroom Log: Week 4 ^[5]
• Courtroom Log: Week 3 (THIS PAGE)
• Courtroom Log: Week 2 ^[6]
• Courtroom Log: Week 1 ^[7]

For the third week of legal proceedings in the case of Hak versus Attorney-General of Quebec (AGQ), the court heard the testimony of five expert witnesses, testifying for the AGQ, for the Mouvement laïque québécois (MLQ, Quebec Secular Movement) or for the organization Pour les droits de femmes du Québec (PDF-Q, For Women’s Rights, Quebec), thus all in support of Bill 21. In this article I give an overview of each testimony

Georges-Auguste Legault

Monday morning, the Court heard the testimony of Georges-Auguste Legault (for the MLQ), an expert in professional ethics in teaching. He draws a distinction between deontology which prescribes certain behaviours, and ethics which deals with the values and purposes which guide a profession. In public education, deontology requires that personnel working in that domain maintain a certain critical distance from beliefs. They must transcend their own personal concerns. A religious symbol may interfere with that necessary reserve.

Professor Legault distinguishes three levels of meaning of a religious symbol:

1. Its subjective significance, from the point of view of the person wearing it.
2. Its cultural significance. A religious symbol represents an entire religious culture, including texts and authorities.
3. Its public significance, i.e. how the symbol will be interpreted by those who see it in public spaces.

Often only the first meaning is considered and the other two are neglected. These meanings are incompatible with the duty of critical distance. The wearing of a religious symbol may give rise to doubt about the competence of the wearer and thus undermine confidence in the teacher. Since every professional relationship is one of power, the wearing of a religious symbol adds yet another complication which may cause mistrust. The challenges of a professional position are considerable for everyone; the challenge is even greater if the teacher wears a religious symbol.

Professor Legault is asked to give his opinion of Jocelyn Maclure’s report. He points out that, in the report, Maclure opts for so-called “open secularism” which constitutes a negative value judgement, as if secularism were normally “closed” and thus a bad thing.

Cross-examination of professor Legault takes place Tuesday morning. Maître A. Hussain attempts to downplay the professor’s qualifications by pointing out that he has no diploma in sociology, nor in psychology, nor in political science, etc. Hussain lists a whole panoply of minority groups—religious, handicapped, vegetarian, sexual orientation, etc.—and accuses the professor of having a preexisting implicit bias. Legault replies, “I do not judge persons. I say that a religious symbol introduces noise into communications. I am doing an analysis of impact. I speak only of religious symbols and beliefs.”

Professor Legault rejects the practice—common among opponents of Bill 21—of conflating prejudice with strong conviction. He takes care to distinguish the two, because a conviction may be the result of a well-founded judgement.

Hussain makes further accusations: “Your frame of reference is predetermined to target minorities and make a negative judgement about them.” But Legault replies that his analysis has nothing to do with either minorities or majorities.

Hussain seems to assume that religious affiliation is not a choice, just like sexual orientation and handicaps are not choices. He accuses Bill 21 of excluding certain groups, but Legault is not fooled: “It is a constraint on the behaviour of persons who work in a certain context. You are accusing Bill 21 of being Machiavellian, of deliberately excluding a group by imposing that constraint. You are drawing a causal link which is simply not there. The burden of proof is on you to show the existence of such a causal link.”

Another lawyer opposing Bill 21 compares the Bill with a law which would ban handicapped persons from working in certain jobs. She makes this comparison in the form of a question which she asks four times, each time with greater insistance. Legault replies, “A handicap is not a voluntary symbol. It is not a choice. However, to wear or not to wear a religious symbol is a choice.”

Hussain suggests the example of “Muslim children, whose mother wears the veil, in a classroom.” By using the expression “Muslim children,” the lawyer displays his failure to understand the concept of freedom of conscience, that of the children in this case, because a child must not be assigned to a religious category, whether it be the religion of his or her parents or a different one, and certainly not before reaching adulthood. Hussain even goes so far as to denigrate the professor personally, referring to him contemptuously: “You, a white man, think you know better than the mother of the child?”

Yannick Dufresne

On Monday afternoon, the Court continues with and completes the cross-examination of professeur Yannick Dufresne (expert for the PGQ) whose testimony began the previous Friday. Dufresne is an expert in public opinion and presented a poll whose results indicate that Quebecers’ greater support for secularism (compared to Canadians outside Quebec) is strongly correlated with the weaker religiosity of Quebecers.

Maître Hussain tries to induce Dufresne to admit that the poll results indicate a correlation with so-called “Islamophobia” rather than with a negative attitude towards religion in general. Hussain even alleges that such “Islamophobia” is form of racism. But professor Dufresne rejects that idea: “I distinguish between racism and anti-religiosity. Quebecers’ negative attitudes are targeted more against religions than against religious minorities. In Quebec, there is no correlation between favouring white people and supporting secularism.”

Hussain claims to have found, in the report authored by Dufresne and his colleague Gilles Gagné, a flaw which undermines their conclusion that weak religiosity explains support for secularism. He requests that a specific calculation be done and Dufresne promises to do so in the coming days.

Maître Rémi Bourget (FAE) also tries to undermine the report’s credibility. Dufresne and Gagné found that Quebecers have a somewhat negative attitude toward Arabs. “Could there perhaps be a confusion between Arabs and Muslims?” suggests Bourget. “We controlled statistically for any Arab-Muslim conflation,” replies Dufresne.

Jacques Beauchemin

For the remainder of Tuesday and continuing on Wednesday morning, the Court hears the testimony, for the MLQ, of Jacques Beauchemin, professor of sociology at UQÀM (Université du Québec à Montréal), specializing in the sociology of Quebec. Referring to his book La société des identités (“The Society of Identities,” 2004, 2007), he outlines the reconfiguration of the political landscape which occurred after the Second World War, when class struggle as described in classical Marxism gave way to more identitarian activism, based on race, sex, sexual orientation and other identities.

According to professeur Beauchemin, this turn towards identity-based concerns has some positive effects: “We now hear voices which in the past were silenced.” But there are also negative results, such as new taboos—some words are completely censored in certain milieux — and an intense affirmation of religious identities, a vast program of ostentatious self-identification. In the field of teaching, the result is proselytism, whether intentional or not.

In this context, Quebec too has undergone a major change in its identity. The traditional French-Canadian identity has been eclipsed by the Québécois identity framed by the Québécois State. Having abandoned their Catholic heritage which Beauchemin compares to that of Poland, the Québécois have chosen to pool their resources and secularize their society. Here are some of the stages in that process: The Parent Report followed by the creation of the Ministry of Education in 1964; the Estates General on Education in 1995-96; the Proulx Report in 1998 followed by the establishment of linguistic school boards (replacing religious ones) in 2000. Bill 21 is a natural part of that evolution, a further stage toward the full secularization of the Quebec school system.

As for religious symbols, professeur Beauchemin explains that the Parent Report had already suggested putting an end to the situation where the schoolmaster knows all, where rote learning is emphasized, etc. Henceforth, the teacher will be more a guide, with a duty of neutrality and a certain restraint when dealing with convictions. The freedom of thought of the pupil is valued. This means the end of religious symbols. In Beauchemin’s opinion, it would be reductionist to claim that religious symbols have no effect on children. Objectively, a symbol transmits a message and breaches the neutrality of the school environment. The teacher’s authority is thus tainted by the meaning of the symbol.

From the perspective of secular schooling, it is important to have neutral space, free of ostentatious political, religious or anti-religious symbols.

The witness also recognizes the problems and flaw in the Ethics and Religious Culture (ERC) program, which tends strongly towards cultural relativism, stifles any comparative study of religions and remains silent on the issue secularism. He therefore recommends a major overhaul of that course.

During cross-examination, lawyers opposing Bill 21 attempt, yet again, to devalue the witness’ qualifications. The professor has no training in education, nor in psychology, nor in pedagogy, etc. His report contains no interviews or polls. They also try to draw links with non-religious minorities (blacks, gays, etc.) And, as usual, they accuse Bill 21 of discriminating against certain minorities, an allegation to which Beauchemin responds, “The law does not target persons! It target symbols. The Bill applies equally to everyone.” And a few minutes later, he adds, “The Bill does not target categories of the population based on their minority or majority status. The Bill does not target women any more than men.”

As professor Beauchemin criticized cultural relativism earlier, Maître Bourget accuses him of practicing cultural relativism himself by proposing a model of secularism which differs substantially from Canadian multiculturalism! The professor answers decisively: “No. We are not relativizing. We take into consideration the rights of two groups, teachers and pupils. The right of teachers to wear religious symbols is a form of cultural relativism because it fails to take into account the rights of children.”

The judge puts serveral questions to the professor. In particular, the judge does not understand how a teacher’s religious symbol can threaten the freedom of conscience of others. Beauchemin explains that those others are children and that the most prudent approach to take under the circumstances is to provide neutral institutions, avoiding a clash of identities.

In reply to a question about proselytism, the professor comments, “There is a scale. There is proselytism in the strict, active sense, whose purpose is to convert. But wearing the hijab is a form of passive proselytism. The veil transmits a sexist message, incompatible with equality of the sexes. The work of semiologists explains the meanings of signs.”

During cross-examination, Maître Hussain brings up the Quebec City massacre, just as he did the previous week, without indicating its relevance if any. He alleges an equivalence between a Quebec civil servant in 2020 who refuses to give up his/her religious symbol, and a federal civil servant in 1960 who refuses to give up his/her French mother tongue. And finally, Hussain belittles the witness personally by referring to him as “A white man of a certain age.”

Yolande Geadah

The testimony of Yolande Geadah extends from Wednesday to Friday, for several reasons. On Wednesday afternoon the session begins at 2 pm as usual, but ends early at 4 pm because the courtroom ventilation system is not working. The next morning, Thursday, the session begins at the usual time of 9:30 am but is suspended at 11:15 am because it is revealed that the children of Maître Hussain, who attended the proceedings earlier in the week, have tested positive for covid-19. Finally, the trial resumes the next day Friday, but on-line for everyone.

The expertise of Ms. Geadah, independent researcher and expert witness for PDF-Q, is hotly contested by the opponents of Bill 21. Thus, the Wednesday afternoon session begins with some 90 minutes of challenges to Ms. Geadah’s very presence as a witness, concentrated mainly on the fact that her qualifications are not academic. And yet, she is an associate member and researcher of the Institut de recherches et d’études féministes (IREF or Institute for Feminist Research and Studies) at UQÀM. She is also the author of three notices, prepared for the Quebec Council on the Status of Women, on the subjects of polygamy, prostitution and honour crimes. She has in addition prepared material for the United Nations and for the Supreme Court of British Columbia. As part of her research on the imposition of the veil on women, she has undertaken analyses of texts and sermons (often in Arabic) from various Muslim authorities. She was awarded the MLQ’s Condorcet-Dessaules Prize for 2007 and is the author of several books, including Femmes voilées, intégrismes démasqués (Women Veiled, Fundamentalisms Unmasked).

Finally the judge decides to accept Ms. Geadah as expert witness and her examination by Christiane Pelchat (PDF-Q) begins.

For Ms. Geadah, Bill 21 is not discriminatory because it targets no religion in particular. Secularism protects everyone, including the members of religious minorities. Most religious believers, including most Muslim women, do not wear religious symbols. The debate about individual rights misses the point completely. The promotion of wearing symbols is part of a fundamentalist movement whose purpose is to reconfessionalize public spaces.

It makes no sense to grant religious minorities the exceptional privilege of wearing religious symbols.

Certain religious practices and beliefs are discriminatory, not Bill 21. Most religions, especially the monotheistic ones, are patriarchal. The sacralization of the veil is part of that patriarchal ideology which posits that women are impure and therefore must cover themselves.

Concerning the proselytic aspect of wearing religious symbols, Ms. Geadah emphasizes the importance of the concept of internal proselytism, that is, proselytism which operates within the membership of a given religion. Its purpose is to get all coreligionists to apply the same practices and norms, as promoted by fundamentalists, just as Salafism attempts to re-establish the practices of 7^th century Islam.

The veil is a tool of the patriarchy for the control of women. Imposing the veil on children, on girls, is a new and perverse strategy of fundamentalists. They impose the veil as early as possible so that the girls will not rebel later in life. Previously they imposed it on teenage girls for similar reasons. Now they go further with this strategy and apply it at a younger age.

The veil is a symbol of modesty (pudeur) which implies that it is shameful to expose certain parts of the body. Thus it transmits that mentality that modesty = shame = dishonour. All women who do not wear the veil are considered to be exhibitionistic, immodest, immoral and bad Muslim women who will end up in hell. They are stigmatized. The veil thus establishes a discrimination between virtuous and non-virtuous women. Children must not be exposed to this mentality because it dehumanizes women. The veil labels women as belonging exclusively to the Muslim community. They must not associate with any man outside the family.

Ms. Geadah points out that those women who praise the veil admit that, for them, the veil brings them closer to god. This confirms that unveiled women are considered to be far from god. As for the testimony of the theologian Solange Lefebvre, who claims that the veil has many meanings, Ms. Geadah emphasizes that it is the collective and objective sense of the veil that takes precedence. Similarly, the original meaning of the swastika, an ancient and sacred Hindou symbol, is now completely eclipsed, even erased, by the meaning of the Nazi swastika.

In Egypt, fundamentalists have infiltrated all organizations in order to impose their ideology. The distinction between Muslims and non-Muslims is now very pronounced. But here in Quebec, fundamentalists are welcomed with open arms and the political aspect of their movement is completely ignored.

In Muslim countries, women who do not wear the veil are often persecuted, sometimes killed. There has been a return, in those countries, to long-abandoned practices such as polygamy, female genital mutilation and an emphasis on purity and virginity of girls and young women. This movement is an impediment to equality of the sexes. The veil is an integral part of this whole routine. Women who remove their veil are targets of numerous insults and hateful speech, thus illustrating the fact that it is not really a choice.

Muslims do not form a homogeneous community. It is important to accept and respect that diversity within the set of all Muslims. Bill 21 respects that diversity by virtue of the religious neutrality which it imposes. Some Muslims fled their country of origin in order to escape the pressure from fundamentalist ideologies which threatened their freedom and those Muslims support secularism.

The language used by those who promote the veil is global. It permeates preaching everywhere, in mosques, community centres, websites, religious study circles, etc. We hear the same sort of discourse in Quebec as in the Muslim countries which Ms. Geadah has visited. For example, in the words of the imam Charkaoui, who is very popular in Quebec, “The hijab is your jihad in your daily life.” It is a symbol of identity and purity.

For Ms. Geadah, religious affiliation is completely different from having black skin or a handicap. The religious symbol indicates affiliation which is a choice. No-one chooses their skin colour or their handicap.

According to Ms. Geadah, the idea that wearing the veil is a free choice is absurd, a denial of reality. She criticizes the current of feminism known as intersectionality which has abandoned universalism, reducing everything to the individual, to personal agency. Not all decisions made by women are necessarily feminist! Some women are on the political far-right. To take a position in favour of a patriarchal ideology is not feminist. It goes against the rights of women in general.

As for those witnesses such as Ms. Hak and Ms. Chelbi who claim that wearing the veil is their choice, Bill 21 does not interfere with their choice outside the sphere where the law applies, in positions of authority in State institutions such as schools.

Maître Pelchat asks Ms. Geadah for her opinion of the alleged link between secularism and racism. Ms. Geadah replies by explaining that correlation is not cause and that the two must not be conflated. A hostility towards Muslims may be the result of Islamist violence in other countries. It is perfectly normal to fear certain symbols which represent that ideology. False accusations of racism and “Islamophobia” have only aggravated the situation and inflamed that hostility.

Ms. Geadah summarizes her main testimony: religious symbols are themselves barriers. Banning them does not create division and separation; on the contrary, the religious symbols themselves divide and stigmatize. Furthermore, the veil is unlike any other religious symbol (contrary to what Solange Lefebvre claims). The veil is imposed by force, by assassination or imprisonment. She knows of no other religious symbol which is imposed in such a manner. Her demand can be thus expressed: Freedom of religion and freedom from religion. We must not allow religious norms to become embedded in civic space, she says.

As usual, lawyers opposing Bill 21 try, when cross-examining Ms. Geadah, to undermine her credibility. They claim that her report lacks examples and qualitative studies. For example, they ask her, “Have you tested your hypothesis that a symbol worn by a teacher has much more effect than a symbol displayed on the wall?” Ms. Geadah replies, “No. But no-one tested the effect of the symbol on the wall before removing it either! It must be removed on principle, for reasons of secularism. Studies may be undertaken, sure, but that is not necessary. Furthermore, researchers do not bother to do that kind of study and are only interested in the opinions of the person wearing the symbol.

Finally, Maîtres Hussain and Bourget accuse Ms. Geadah of lack of discipline in that her answers are too long. Maître Pelchat reacts angrily to this accusation: “Ms. Geadah is simply responding to the questions put to her. Witnesses deserve respect… We of PDF-Q have only one expert witness…”

Patrick Taillon

Friday afternoon, the week draws to a close with the testimony, for the AGQ, of Patrick Taillon, professor at Laval University and expert in comparative constitutional law. His mandate was to compare Bill 21 with norms in various European States.

For professor Taillon, Europe constitutes an institutional experience which is unique in the world. Constitutional control there is much tighter than, for example, in Commonwealth countries such as Canada.

Professor Taillon summarizes those decisions of the European Court of Human Rights (ECHR) which he considers relevant: some 27 decisions involving seven countries. He observes that there is always a certain minimum degree of neutrality required, and that that requirement is stronger when diversity is greater. However the ECHR does not impose a uniform model. Some member States are secular while others have a State religion. There is a spectrum of situations. Although there is no uniformity, as a general rule, the smaller the space involved, the greater is acceptance of constraints on the wearing of religious symbols. Seven European countries ban hiding the face (which in Bill 21 is referred to as requiring “face uncovered”).

An example: A 2018 law in Geneva closely resembles Quebec Bill 21, except that it has somewhat wider scope. The ban on religious symbols applies to elected officials, while pupils in schools must have their faces uncovered.

Professor Taillon criticizes the report submitted by researchers David Koussens and Pierre Bosset whose testimony against Bill 21 will be heard next week (4^th week). Koussens and Bosset use the word “secularisms” (laïcités) in the plural, adding adjectives to specify particular types. What Taillon calls “secularism” (singular), they call “separatist secularism”—thus making a rather negative value judgement. On the contrary, in the professor’s opinion, secularism is completely compatible with the Quebec notion of interculturalism.

Maître Hussain complains that the witness’ responses are too lengthy and insufficiently focused. Maître Pelchat expresses her total disagreement with that assertion.

The testimony of professor Taillon continues next week.