Courtroom Log of Hak versus AGQ: Week 4

The Act respecting the laicity of the State (Bill 21) Before the Courts
Summary of the fourth week, 23rd and 24th November 2020
Quebec Superior Court

David Rand


In the Same Series:

The fourth week of the proceedings lasts less than two days. The Court continues with the testimony of professor Patrick Taillon for the Attorney-General of Quebec (AGQ) and then hears the testimonies of David Koussens and Pierre Bosset (against Bill 21) who respond to the report submitted by Taillon and his colleague Marthe Fatin-Rouge Stefanini.

But first, Monday morning begins with a suprising request: Maître Rémi Bourget, speaking for both himself and for Maître Hussain, demands an apology from Maître Pelchat (PDF-Q) for her statements make the previous Friday afternoon when she accused the two lawyers of sexism because of their criticism of the alleged verbosity of PDF-Q’s expert witness, Mme Yolande Geadah. Maître Pelchat replies that she has received the formal notice to that effect which Bourget et Hussain sent her, but she refuses to apologize. The judge makes no comment one way or the other in this conflict; he simply gives the floor to each of the two parties in turn.

Thus we move on to the testimony of professor Taillon who takes further questions from Maître Brunet. The professor comments on the decision of the European Court of Human Rights (ECHR) in the case Dahlab versus Switzerland (2001) which validated the ban on teachers expressing their religious views by wearing symbols.

According to the report by Koussens and Bosset, a decision by the ECHR recognizing that a religious symbol worn by a teacher can compromise students’ freedom of conscience was motivated by the fact that the symbol was of the majority religion of the country concerned, Turkey to be specific. Koussens and Bosset maintain that this particular context was the determining factor in that decision. However, Taillon disagrees and maintains that the Court has recognized such effects of symbols in other countries and in other circumstances.

The professor explains the concept of “national margin of appreciation,” a principle by which the ECHR adapts its decisions to a particular country, according to the customs and constitutional context of that country. He maintains that this principle can apply to Canada as a federation of several jurisdictions, but Koussens and Bosset reject this parallel.

Professor Taillon compares Quebec Bill 21 to several European measures. Bill 21 is more precise and more moderate, especially with regard to face-coverings. It applies to a narrower scope of situations and has weaker penalties than laws in France. He considers Bill 21 to be closer to legislation enacted in the Netherlands than to French or Belgian laws.

In cross-examination, Maître Hussain asks professor Taillon whether, during his testimony before the Commission of Institutions which studied Draft Bill 21, he criticized Canadian legislation for its definition of freedom of religion, asserting that that definition is too wide in Taillon’s opinion. The professor replied that the Supreme Court of Canada appears to be trying to correct this trend somewhat in its more recent decisions. He adds that Bill 21 adds a certain clarity and decisiveness.

Hussain asks Taillon whether he is rather more republican than liberal. The professor replies that such labels can be misleading because they tend to obscure nuances. To liberalism, which he summarizes by evoking the parallel between freedom and non-intervention, one can add republican values such as the concept of dignity and the rejection of domination. At any rate, he concludes, the report he submitted in collaboration with his colleague Stefanini is not a theoretical treatise.

Quoting the expression “educational authority and coercive authority” used by Taillon and Stefanini in their report, Maître Hussain tries to get Taillon to admit that the ban in Bill 21 goes beyond civil servants in positions of coercive authority. In the same vein, Hussain recalls that the ban applies to any lawyer hired by the State—thus, he adds, it would apply even to a researcher, or to a lawyer who is simply conducting negociations, or even to a lawyer retained by the government of Quebec in another province. The witness replies, “Extra-territoriality is an interesting issue, but I had not considered it.”

Hussain suggests that Taillon’s definition of “coercive authority” is very, very wide, even ephemeral. “Very wide, yes. Ephemeral, no.” replies the professor. Thus, Hussain continues, you admit that Bill 21 has a wide scope of application? “No,” replies the professor, “Bill 21 goes a little farther than the recommendations of the Bouchard-Taylor Commission, but not a lot farther.”

Taillon having observed that several European laws go further than Bill 21, Hussain accuses him of the “fallacy of the Golden Mean”—i.e. the assertion that the correct solution lies halfway between two opposing positions. Professor Taillon defends his position, saying that “We simply made a comparison.” To summarize, he recalls that “the vast majority of State employees are not covered by Bill 21.”

Monday afternoon, cross-examination continues, this time by Maître Rémi Bourget who challenges the assertion made by Taillon and Stefanini that the notwithstanding clause was indispensable in reaching the agreement by which the Constitution was repatriated in 1982. “It’s an obvious historical fact,” replies the professor, reminding the Court that that agreement was the culmination of some 50 years of negotiations. Bourget criticizes Taillon for not mentioning the Baby-Loup case for which the UN condemned France. Professor Taillon replies that he prefers to concentrate on internal law, i.e. European law, because he suspects external opinions of falling into the dubious habit of isolating rights and freedoms from their context.

Bourget argues that Bill 21 is something completely new in the Americas and in the Commonwealth. Taillon replies, “That is outside the range of my expertise. I am unaware of the situation in Mexico for example.”

This completes the testimony of Patrick Taillon. The Court discusses possible arrangements for the witness Guy Rocher (for the AGQ) who, for reasons of health and advanced age, can testify neither in person nor virtually. Maîtres Grossman and Bourget indicate their desire to cross-examine Guy Rocher but, recognizing that impossibility, propose the followning solution: strike out certain allegations from his report, leaving only objective facts. The matter is left undecided.

The afternoon continues with the testimony of David Koussens, Associate Professor at the University of Sherbrooke and specialist in rights and the sociology of secularism. He is mandated by the English Montreal School Board (EMSB) and the Coalition Inclusion Québec, both of which oppose Bill 21, to comment on the Stefanini-Taillon report. Maître Perri Ravon (for the EMSB) takes charge of the main interrogation.

Koussens begins by underlining that secularism in practice has little to do with any explicit declaration of this principle, or absence of such declaration, in a State’s constitution or legislation. A State which does not declare this principle may very well implement some form of secularism, at least partially, whereas a State which formally declares itself secular may fail to respect the principle in practice.

Koussens and his colleague Bosset tend to use the terminology of Jean Baubérot, a French historian and sociologist, who recognizes a whole gamut of types of secularism—thus, secularisms (plural)—each type accompanied by a different adjective. However, there exists a definition of secularism (laïcité) without adjective, for example that of the French philosopher Henri Pena-Ruiz, a definition associated with republicanism and founded on the essential principle of separation between State and religion, going beyond mere State religious neutrality. But this secularism, Koussens et Bosset load it down with the dubious label “separatist secularism,” thus subjecting it to a rather negative value judgement. According to Koussens, this “separatist” variant constitutes an “overdetermined norm” and represents only one of some eight different secular regimes existing in France.

Among the other variants mentioned by Koussens are, for example, “secularism of recognition” which emphasizes equality and equilibrium, “jurisdictional” or “collaborationist secularism” which recognizes certain religions and “differentialist secularism” which legitimizes the symbols of the majority religion. The approach chosen by Koussens and Bosset seems to amount to relativizing the concept of secularism, thus blurring its definition and weakening its implementation.

According to professor Koussens, some decisions of the ECHR recognize that simply wearing a religious symbol does not necessarily represent proselytism. An abstract danger is not enough; the danger must be concrete. Again according to Koussens, the State Council (Conseil d’État) of France has already expressed the opinion that the act of wearing a veil is not in and of itself contrary to secularism, but rather the conditions under which it is worn, viewed on a case-by-case basis, may render that act ostentatious. However, these cases involve religious symbols worn by students in French schools, which is totally unrelated to Bill 21 whose ban does not apply to students at all.

Maître Ravon asks the professor to explain the expression “the patrimonialization of secularism” used in the report by Koussens and Bosset. Koussens answers that it refers to a particular form of secularism which is a reaction against a minority religion seen as a threat to national identity and whose purpose is to use shared values to render that minority religion invisible. This answer is met by an objection from Maître Luc Alarie (for the MLQ) who declares that it is completely outside the subject of the report and the mandate of its authors. The judge rejects the objection and Koussens continues his explanation, now evoking a variant of secularism which he calls “assimilationist” which may become “differentialist.” (In my opinion, we have here a disguised example of an overly wide definition of the concept of “prejudice.” That is, the resistance to the minority religion is simply assumed to be unjust. However, that resistance may indeed be legitimate if it is well-founded.)

The testimony of professor Koussens continues on Tuesday morning.

During cross-examination, Maître Éric Cantin (for the AGQ) suggests that all these various types of secularism which Koussens lists constitute “a vocabulary which is not really neutral, is it?” The professor responds, “It is a vocabulary used only to understand clearly and to explain, with no normative intention.” He adds that the expression “catho-laïcité” for example is indeed tendentious, but it is not part of his vocabulary.

This is followed by the testimony of Pierre Bosset, collaborator of professeur Koussens and expert in international law, human rights and comparative law, with particular reference to freedom of religion and secularism. Professor Bosset was a member of the consultative committee of the Bouchard-Taylor Commission.

Professor Bosset continues in the same vein as his colleague Koussens, for example: (1) ignoring the objective meaning of religious symbols such as the veil; (2) underestimating the proselytizing effect of the wearing of religious symbols; and (3) suggesting that a ban applied explicitly to both sexes can nevertheless, in practice, have a discriminatory effect on women.

Koussens and Bosset have in fact a short-sighted and myopic view of the issue. They interpret the meaning of a religious symbol strictly from the point of view of the person wearing it, thus ignoring its objective meaning. They have a very narrow interpretation of proselytism (in the sense of trying to convert), thus underestimating passive proselytism and completely ignoring internal proselytism whose purpose is to impose fundamentalist practices on people of the same religion. Furthermore, they underestimate the danger represented by political Islam, assuming it to be influential only in countries where Islam is the majority religion.

Professor Bosset supports the view that decisions of the United Nations Human Rights Committee are as important as those from the European Court of Human Rights, thus expressing his disagreement with professor Taillon on this issue.

Bosset also disagrees with Taillon on the application of the “national margin of appreciation” which Taillon sees as applicable to the Canadian federation. In Bosset’s view, this principle is contested even within Europe because, if it were fully applied, the ECHR would be no more than a “rubber stamp” which approved every decision brought before it.

On Tuesday afternoon, the session adjourns a little before 4 pm. The proceedings will resume on Monday November 30th with the beginning of oral arguments from lawyers. Furthermore, the sessions will once again be held at the Montreal Courthouse for those who prefer to attend physically.

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