BRIEF ON BILL 21 An Act respecting the laicity of the State - Special Caucus Meeting, May 7, 2019 - Union étudiante du Québec
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BRIEF ON BILL 21
An Act respecting the laicity of the State
Special Caucus Meeting, May 7, 2019CAUCUSX011-02
Brief on Bill 21
This documented was adopted on May 7, 2019
Special Meeting of the Members’ Caucus
Union Étudiante du Québec
6217 rue St-André
1-877-213-3551
unionetudiante.ca
info@unionetudiante.ca
©unionetudianteduquébec
The Quebec Student Union’s (QSU) mission is to defend the rights and interests of the student
community, of its member associations, and of their members by promoting, protecting, and
ameliorating the conditions of students and those of local and international communities.
The QSU represents more than 88,000 university students from across Quebec. Its intention is to
act as the primary interlocutor for all relevant actors at the different levels of government and within
civil society organizations on matters relating to the accessibility of higher education and the living
conditions of students.
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TABLE OF CONTENTS
RECOMMENDATIONS ................................................................................ 5
INTRODUCTION .......................................................................................... 6
1. ANALYSIS OF BILL 21 ........................................................................... 8
1.1 CONTEXT ...................................................................................................................... 8
1.2 PREAMBLE .................................................................................................................. 10
1.3 CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE................................................ 10
1.4 CHAPTER II: PROHIBITION ON WEARING RELIGIOUS SYMBOLS ........................................ 11
1.5 CHAPTER III: SERVICES WITH FACE UNCOVERED ........................................................... 11
1.6 CHAPTER IV: MISCELLANEOUS PROVISIONS .................................................................. 12
1.7 CHAPTER V: AMENDING PROVISIONS ............................................................................ 12
1.7.1 CHARTER OF HUMAN RIGHTS AND FREEDOMS........................................................... 12
1.7.2 ACT TO FOSTER ADHERENCE TO STATE RELIGIOUS NEUTRALITY AND, IN PARTICULAR, TO
PROVIDE A FRAMEWORK FOR REQUESTS FOR ACCOMMODATIONS ON RELIGIOUS GROUNDS IN
CERTAIN BODIES................................................................................................................ 13
1.8 CHAPTER VI: TRANSITIONAL AND FINAL PROVISIONS...................................................... 13
2. PROHIBITION ON WEARING RELIGIOUS SYMBOLS ....................... 14
2.1 ACCESSIBILITY OF EDUCATION AND PROFESSIONS ......................................................... 14
2.2 AUTHORITY AND COERCION.......................................................................................... 15
2.3 INTERPRETATIONS AND WORK ENVIRONMENT................................................................ 16
3. SERVICES WITH FACE UNCOVERED ................................................ 18
4. NOTWITHSTANDING CLAUSES .......................................................... 20
5. POSITION ON BILL 21 .......................................................................... 22
CONCLUSION ........................................................................................... 23
BIBLIOGRAPHY ........................................................................................ 24
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LIST OF ACRONYMS
AÉCSUM Association étudiante des cycles supérieurs de l'Université McGill
CAQ Coalition avenir Québec
CDPDJ Commission des droits de la personne et des droits de la jeunesse
[Human and Youth Rights Commission]
FAE Fédération autonome de l’enseignement
FEUQ Quebec Federation of University Students
PLQ Quebec Liberal Party
PQ Parti québécois
QSU Quebec Student Union
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RECOMMENDATIONS
Recommendation 1
That students already studying in a university program prior to the adoption of a prohibition on
wearing religious symbols through Article 6 of Bill 21 on State Laicity be included under Article 27
of that bill, exempting them from this measure by including them in the grandfather clause, when
they enter into their new profession.
Recommendation 2
That interns be exempted from the prohibition on wearing religious symbols, as given in Article 6
of Bill 21 on State Laicity.
Recommendation 3
That Schedule II of Bill 21 be amended to remove lawyers, notaries, sheriffs, commissioners,
members of commissions, arbitrators, clerks, teachers, school principals and vice-principals from
the list of employees who are prohibited from wearing religious symbols.
Recommendation 4
That accommodations be allowed regarding the obligation to receive services with an uncovered
face.
Recommendation 5
That educational institutions at the university level be removed from the list of organizations
enumerated in paragraph 7 of Schedule 1 in Bill 21.
Recommendation 6
That Articles 29 and 30 be withdrawn from Bill 21 on State Laicity.
Recommendation 7
That the Quebec Student Union oppose Bill 21 as proposed to the Government of Quebec’s 42nd
legislature on March 28, 2019.
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INTRODUCTION
On March 28, 2019, the Minister of Immigration, Diversity and Inclusiveness, Simon Jolin-Barette,
presented Bill 21: An Act respecting the laicity of the State to the National Assembly. If adopted
as presented, the Act would prohibit individuals exercising certain professions from wearing
religious symbols while working. This prohibition would apply to teachers at public schools, judges,
peace officers, and notaries and lawyers working for the government. Some of the individuals
affected by this Act would be covered by a grandfather clause, allowing individuals who were
already employed prior to the Act’s adoption to continue wearing religious symbols while working
as long as they exercise the same function within the same organization. The Act also stipulates
that personnel in any public body must have their face uncovered when providing a service.
Similarly, anyone receiving such a service must also have their face uncovered when doing so is
necessary to allow their identity to be verified or for security reasons. The Act also specifies that
it is exempt from the Canadian Charter of Rights and Freedoms in the Constitution Act, 1982, nor
by the Quebec Charter of Rights and Freedoms (C-12), by virtue of their respective
notwithstanding clauses.
This bill has already been subject to a vigorous response from nearly everyone involved in
education. School boards, administrations, and unions have all spoken out to denounce the bill,
arguing that it addresses a problem that doesn’t exist, undermines and discourages teachers,
creates an inequality between public and private schools, threatens the working conditions of
many teachers, and is an attack on the fundamental rights of Quebecers (Richer 2019; Radio-
Canada 2019; FAE 2019). The opposition to this bill includes 250 members of the university
community who argue that Bill 21 serves to profile cultural and religious minorities in the province
(Celis et al. 2019).
For our part, the Quebec Student Union (QSU) has strong reservations regarding several articles
included in Bill 21. Our association represents many students who are in university and who
display their faith, who will be affected by this bill immediately and when attempting to integrate
into their profession. These include many future teachers, notaries, and lawyers. The Laicity Act
reduces the accessibility of education and the practice of certain professions for many students
who belong to a religious minority and wear a religious symbol. We also have concerns regarding
the effects that an overzealous application of certain section could have, including the prohibition
on wearing religious symbols and on providing or receiving services with a covered face, if there
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is no legal requirement or possibility of providing accommodations. Finally, like many others, we
have questions regarding the legitimacy of using the notwithstanding clauses under the Quebec
and Canadian Charters to avoid legal challenges to the act (FAE 2019; Celis et al. 2019; Nepveu,
Leroux et Seymour 2019; Gérard Bouchard dans La Presse 2019).
In keeping with its mission of defending the rights and interests of Quebec’s university students,
this brief presents the QSU’s recommendations regarding amendments to Bill 21. It begins with a
brief summary of the bill, followed by our analysis and recommendations regarding the prohibition
on religious symbols, the obligation to both provide and receive public services with an uncovered
face, and the bill’s use of the notwithstanding clause.
The Quebec Student Union and Quebec’s student associations have a very clear position: we will
not accept Premier Legault’s statement, that students should be forced to choose between their
faith and their studies (Richer 2019; Lajoie 2019-a), as a response to our concerns. Unless major
changes are made to the Act, as proposed, we are entirely opposed to its adoption.
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1. ANALYSIS OF BILL 21
This section presents a brief and partial analysis of Bill 21. It concentrates primarily on those
aspects of the bill that most concern us and for which recommendations are given below.
Nonetheless, our analysis opens with a description of the social context surrounding the
introduction of Bill 21. It then moves on to consider each chapter of the bill.
1.1 CONTEXT
Debates on secularism, laicity, religious symbols, and accommodations erupted onto Quebec’s
political landscape in 2006 during the “reasonable accommodation crisis.” The term “reasonable
accommodation” generally refers to an arrangement put in place to address a form of
discrimination and allow an individual to benefit from the same rights and services as everyone
else. Specifically, a reasonable accommodation is defined as a “legal obligation, applicable in a
discriminatory situation, that consists in adjusting a universal standard or practice, within a
reasonable limit, to grant differential treatment to a person who would otherwise be penalized by
the application of that standard.” (Pierre Bosset, cited in CDPDJ 2018 ; translated from original).
However, the intense and often erroneous media coverage of accommodations focused almost
exclusively on those given for religious reasons. This biased media coverage, rooted in fears
among many French-Canadian Quebecers about being swamped by other cultural minorities
(Bouchard and Taylor 2008, 18), quickly created a social crisis that would not have otherwise
existed. One of the most marking events of this period was the adoption of a controversial code
of conduct by a small municipality in Mauricie, Hérouxville, igniting renewed debates throughout
the province. In response to this situation, the Government of Quebec created the Consultation
Commission on Accommodation Practices Related to Cultural Differences, known as the
Bouchard-Taylor Commission, to take stock of accommodation practices in Québec, analyse the
attendant issues, conduct an extensive consultation on the topic, and formulate recommendations
to the government (Bouchard and Taylor 2008, 17). Upon the completion of this mandate, the
Commissioners, Gérard Bouchard and Charles Taylor, notably recommended creating policies or
programs to promote interculturalism and an open secularism that would promote the integration
of cultural minorities into Quebec society and help to fight the inequalities and discrimination they
face (Bouchard and Taylor 2008, 22). As for allowing agents of the State to wear religious signs,
the commissioners specifically recommended prohibiting this practice only among individuals
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granted coercive powers (e.g. judges, police officers) (Bouchard and Taylor 2008, 260). The
Liberal government in power at the time did not implement many of the report’s recommendations.
In September 2013, the Government of Quebec, then formed by the Parti Québécois, proposed a
Charter of Quebec Values with the introduction of Bill 60. Both the Charter and the bill, introduced
for the purpose of establishing Quebec as a secular society, prohibited the wearing of
‘ostentatious’ religious symbols by any government employee (such as the kippah, a turban, an
Islamic headscarf, etc.). This prohibition included staff at both universities and CEGEPS. However,
religious symbols worn as jewelry (e.g. rings or necklaces) were authorized (Dagenais 2014). This
Charter created a deep division within Quebec society, including the university community.
Student associations were concerned that university students would be forced to choose between
their religious values and career goals (Dagenais 2014; AÉCSUM 2014). However, Bill 60 was
not adopted at the time and was subsequently abandoned after the provincial elections in 2014,
when a new Liberal government was elected.
In 2017, the Government of Quebec tabled and adopted Bill 62, which became the Act to foster
adherence to State religious neutrality and, in particular, to provide a framework for requests for
accommodations on religious grounds in certain bodies (R-26.2.01). At the time, the QSU adopted
a position to oppose the law if it were to reduce the accessibility of higher education (QSU 2019,
26). This act requires that any person providing a public service must do so with their face
uncovered. Similarly, the individuals receiving that service must have their faces uncovered “to
ensure the quality of communications between individuals, for the purpose of verifying their
identity, or for security purposes.” (Dagenais 2014; translated from original) However, all
government workers retained the right to wear religious symbols while working, including those
with coercive authority. However, the provisions establishing that services had to be provided and
received with an uncovered face were suspended by the courts a few months later (Sioui 2017).
That same year, the philosopher Charles Taylor distanced himself from the recommendation made
in the Bouchard-Taylor report on this question. He no longer believed it was necessary to prohibit
public agents exercising coercive power from wearing religious symbols (Radio-Canada 2017).
Two years later, the new Coalition Avenir Québec government tabled Bill 21 on State Laicity at
the National Assembly.
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1.2 PREAMBLE
The preamble of Bill 21 covers a number of different points, including Quebec society’s particular
attachment to State laicity. It reaffirms that the Quebec State stands on constitutional foundations
and the importance given to equality between men and women by Quebec society. It is understood
that this passage is in reference to the Islamic headscarf, which has been the subject of spirited
debates in recent years. It also mentions the magistrature’s duty of impartiality and the importance
of State laicity to Québec’s legal order.
In comparison, while the Liberal’s Act on Religious Neutrality defined Quebec as “a democratic,
pluralistic and inclusive society that fosters harmonious intercultural relations,” Bill 21 instead
focuses on Quebec’s “distinct social values and specific history that have led it to develop a
particular attachment to State laicity[.]” In addition, the preamble to the Act on State Neutrality
would be removed by Bill 21, if it were adopted.
1.3 CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE
The Act’s first chapter opens with a declaration of Quebec as a lay State, based on four principles:
1) the separation of State and religions;
2) the religious neutrality of the State;
3) the equality of all citizens;
4) freedom of conscience and freedom of religion.
These principles must be respected in fact and in appearance by parliamentary, government, and
judicial institutions.
It’s worthwhile to compare these four principles with those put forward in the Bouchard-Taylor
report:
I. the moral equality of persons;
II. freedom of conscience and religion;
III. the separation of Church and State;
IV. State neutrality in respect of religious and deep-seated secular convictions.
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The report’s commissioners explained that the first and second principles are essential outcomes
of secularism, while principles III and IV define institutional structures intended to support those
ends (Bouchard and Taylor 2008, 20). Bill 21 doesn’t include any mention of this difference.
In comparing the four principles used in each text, the greatest difference is to be found in the
absence of any mention regarding the State’s neutrality towards secular convictions. Bouchard
and Taylor had this to say about non-religious beliefs:
[being neutral] implies that [the State] adopt not only an attitude of neutrality
towards religions but also towards the different philosophical conceptions that
present themselves as the secular equivalents of religions.
Bouchard and Taylor 2008, 134-135
It would therefore seem that the Government of Quebec has chosen not to include a principle of
political neutrality towards non-religious beliefs. It will also be shown later that the government
views religious and spiritual beliefs differently (Niosi 2019).
Article 3 creates an obligation on the public employees listed in the article and in Schedule 1 to
respect the four principles listed in Article 2 “in fact and in appearance.” Finally, Article 4 states
that laicity requires a prohibition on wearing religious symbols, as presented in Chapter II.
1.4 CHAPTER II: PROHIBITION ON WEARING RELIGIOUS SYMBOLS
Chapter II includes only one section, Article 6, prohibiting the persons listed in Schedule II from
wearing religious symbols in the exercise of their functions. These persons include judges, clerks,
and bankruptcy registrars; commissioners of State commissions, tribunals, and Régies; the
Minister of Justice and Attorney General. Surprisingly, this list also includes teachers, principals,
and vice principals of primary and secondary schools.
1.5 CHAPTER III: SERVICES WITH FACE UNCOVERED
Chapter III establishes that employees of the organizations listed in Schedule I (which includes
universities) must exercise their functions with face uncovered. Similarly, persons who present
themselves to receive a service must have their face uncovered when necessary to allow their
identity to be verified or for security reasons. These articles essentially reiterate the obligations
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imposed by the Act to foster adherence to State religious neutrality and, in particular, to provide a
framework for requests for accommodations on religious grounds in certain bodies (R-26.2.01),
which were suspended by the courts. In this way, the bill is intended to ensure this prohibition is
put into effect, through its use of the notwithstanding clauses in Chapter IV.
Our understanding of this obligation is that it does not preclude offering accommodations for
affected beneficiaries, at their request, despite the provisions of Article 13 (described below). If a
person whose face is covered can be identified and there are no security issues, it would be
possible for them to receive a public service without uncovering their face.
1.6 CHAPTER IV: MISCELLANEOUS PROVISIONS
Chapter IV includes Article 13, which specifies that no accommodations or other derogations,
except those provided for in the Act, may be granted concerning the prohibition on wearing
religious symbols or the obligations to dispense and receive services with one’s face uncovered.
This chapter also states that, once in effect, this Act will take precedence over any collective
agreement, contract, or group agreement.
Article 16 specifies that this Act will have no effect on “the emblematic or toponymic elements of
Québec’s cultural heritage, in particular of its religious cultural heritage.” Our understanding is that
this measure will allow the organizations listed in the bill to retain any religious names or symbols
already present (e.g. the crucifix in the National Assembly, which will be removed, could have
remained).
1.7 CHAPTER V: AMENDING PROVISIONS
This chapter lists a series of modifications to the Quebec Charter of Human Rights and Freedoms
and the Religious Neutrality Act.
1.7.1 Charter of Human Rights and Freedoms
Articles 17 and 18 add an explicit recognition of State laicity to the Quebec Charter as a
fundamental principle of Quebec society and states that fundamental rights and freedoms must
be exercised within that context. As such, Article 9.1 of the Charter would read as follows: “In
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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.”
1.7.2 Act to foster adherence to State religious neutrality and, in particular,
to provide a framework for requests for accommodations on religious
grounds in certain bodies
Articles 19 to 26 amend the Religious Neutrality Act (R-26.2.01) to bring it in line with the new
requirements given in Bill 21. Specifically, the preamble of R-26.2.01 would be repealed and
responsibility for applying the Act would be withdrawn from the Minister of Justice. Instead, it will
up to each government to designate a responsible minister. In effect, since October 31, 2018, the
government made the Minister of Immigration, Diversity, and Inclusiveness responsible for this
Act by ministerial decree.
1.8 CHAPTER VI: TRANSITIONAL AND FINAL PROVISIONS
Chapter VI includes two important legal principles. First is a grandfather clause; second is the use
of the notwithstanding clauses. The grandfather clause excludes employees of public bodies
targeted by the prohibition on wearing religious symbols (other than the President and Vice-
Presidents of the National Assembly) as long as they were employed prior to the bill’s adoption.
However, exempted employees must continue to occupy the same functions in the future. If they
are linked to the government by contract, this exemption ends with their contract—even if it is
renewed. The notwithstanding clauses are invoked in Articles 29 and 30, allowing the Act to
exempt its provisions from the Quebec Charter of Human Rights and Freedoms and the Canadian
Charter of Rights and Freedoms, as allowed for by each of those Acts. It should be noted that the
notwithstanding clause included in the Canadian Charter expires after five years and must,
therefore, be renewed periodically through the adoption of a new act of parliament to that effect.
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2. PROHIBITION ON WEARING RELIGIOUS SYMBOLS
We are concerned about the prohibition on wearing religious symbols included in Bill 21,
particularly for professionals working in education and law. Our concerns are for both future
professionals and for students undertaking a required internship for their degree. Our criticisms of
this measure focus on three points:
2.1 The accessibility of education and the profession and the financial consequences;
2.2 The issue of authority and coercion;
2.3 Multiple interpretations of the Act and the risks they pose for working conditions.
2.1 ACCESSIBILITY OF EDUCATION AND PROFESSIONS
Our first concern regarding the prohibition on wearing religious symbols relates to the accessibility
of education and professions. Prohibiting certain individuals from wearing symbols required by
their religion is effectively the same as prohibiting them from accessing certain professions,
discouraging them from pursuing an education in that field of study. Knowing that they won’t be
able to wear a symbol from their religion in certain work environments, students will avoid studying
in its related academic fields. In addition, many students will be unable to complete an internship
in the public sector if this bill is adopted. These discriminatory measures could have serious
consequences by systematically excluding certain people from entire spheres of public activity,
such as public education and several areas of law. The creation of entire fields of activity that have
been emptied of any diversity in the expression of religious faith stands in direct contradiction to a
society wants to present itself as open to the world. For children in public schools, this act would
deprive them of models and opportunities to learn more about our society’s cultural diversity.
Additionally, there are thousands of students currently pursuing a university degree in the hopes
of someday working as a teacher or in the field of law. Among them are many students who wear
a religious symbol (e.g. headscarf, kippah, turban, etc.) required by their faith or to represent their
religious beliefs. As much as these individuals act to live out their faith, they are also choosing to
define themselves by the profession they one day hope to occupy. Many of them have already
dedicated thousands of dollars and years of study to their education. Some of them have had to
accrue debt through the student financial aid program or bank loans to access and continue their
postsecondary education. It strikes us as unjustifiable to force these students to choose between
their faith and their chosen profession, or to force them to reorient their studies and take on new
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and additional debt. Studies in education and law—which are the most heavily impacted by Bill
21—are long and arduous. For example, an undergraduate degree in education requires 120
credits, representing around four years of full-time studies. This is a significant investment for any
individual. Our first recommendation is therefore intended to offer financial protections to students
who have already begun studying if Bill 21 is adopted and ensure their ability to enter their chosen
profession:
Recommendation 1
That students already studying in a university program prior to the adoption of a prohibition
on wearing religious symbols through Article 6 of Bill 21 on State Laicity be included under
Article 27 of that bill, exempting them from this measure by including them in the
grandfather clause, when they enter into their new profession.
2.2 AUTHORITY AND COERCION
We also disagree with the government’s argument that teachers, along with certain law
professionals, are in a position of coercive authority (which, for the government, is what justifies a
prohibition of religious symbols). First, in the case of primary and secondary education, the entire
domain has strongly rejected the premises of Bill 21 (FAE 2019; Radio-Canada 2019; Richer
2019). No one has seen any evidence or cases of abuse or proselytizing that would indicate a
problem with the status quo requiring a legislative solution. Second, we reject the underlying
interpretation made by the bill which casts teachers as exercising a coercive authority. The
Bouchard-Taylor report, from which the bill draws inspiration, recommended prohibiting religious
symbols among government employees who exercise coercive power (Bouchard and Taylor 2008,
260). They specifically mention judges, Crown prosecutors, police officers, prison guards, and the
president and vice-president of the National Assembly. It’s also important to clarify that these
exceptions to the line of reasoning preceding them are not based on the idea that these agents of
the State would be more impartial because they are not wearing religious symbols. In reality,
Bouchard (2019) specified that a prohibition on wearing religious symbols among these individuals
is intended to inspire confidence among citizens and the belief that they are acting impartially
when exercising their functions. After all, these agents enact coercive functions that allow them to
remove certain fundamental rights from citizens, and even to take their lives (e.g. the use of lethal
force by police officers). There does not seem to be any justification whatsoever for including the
authority of teachers in the same category as judges and peace officers. The same reasoning
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applies equally to many law professionals. As the journalist Michel C. Auger noted, “even lawyers
with a mandate to provide legal aid would be prohibited from wearing a religious symbol, a
situation that is difficult to understand as an exercise of the State’s coercive power, as described
by the Bouchard-Taylor Commission.” (Auger 2019; translated from original). We also contest the
inclusion of interns in this measure (Lajoie 2019-a). How can a student who is completing their
education through workplace experience be said to enact coercive authority? During their
internships, students are regularly evaluated and are accountable to their university and internship
supervisor. We are very far from a powerful authority or a symbol of the State’s coercive power.
We therefore recommend:
Recommendation 2
That interns be exempted from the prohibition on wearing religious symbols, as given in
Article 6 of Bill 21 on State Laicity.
2.3 INTERPRETATIONS AND WORK ENVIRONMENT
A third issue with the bill is that the prohibition on wearing religious symbols, as presented, is open
to interpretation. In effect, Bill 21 doesn’t define what is meant by a religion. This opens the door
to individual interpretations that could result in an uneven application of the law, depending on the
person enforcing it. For example, concerns were raised by different Indigenous communities
regarding the law’s scope. Soon after, Minister Jolin-Barrette and Premier Legault confirmed that
symbols from Indigenous spiritual practices would be excluded from the law, as it is currently
proposed (Niosi 2019). It would seem that there is therefore a distinction being made between
“spirituality” and “religion.” However, no additional information was provided on this point. Further,
in the event the bill is adopted, there are no actual protections in the law for Indigenous people
wearing spiritual symbols if they live, work, or teach outside of reserves or treaty communities.
Recently, professor Lampron (2019) at Université Laval noted how a prohibition on wearing
religious symbols in public spaces “depends on the idea that it will always be possible—and
simple—to identify such signs.” (Translated from original) Yet this is not at all the case. Objectively
identifying a religious symbol is extremely difficult. Beyond known religious symbols like the
headscarf or the kippah, the (inherent) religious character of a symbol, object, or article of clothing
depends on a sincere belief that it is being worn for religious reasons (Lampron 2019). Indeed, a
scarf being worn over one’s hair could just as easily be used for aesthetic purposes as religious
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ones. It strikes us as problematic to prohibit the wearing of religious symbols without offering any
definition for them or solutions for their identification. Unfortunately, it is all too likely that this
imprecision will result in a ‘hunt’ for religious symbols that will create suspicious and accusatory
work environments. It’s important to remember that these work environments are also internship
environments for thousands of students each year. If we end up with zealous individuals
questioning staff and interns under the suspicion they may be wearing a religious symbol, their
work environment could rapidly deteriorate in damaging ways.
Like others, we also deplore the message being sent to religious minorities by the government
(Nepveu, Leroux and Seymour 2019; Celis et al. 2019). Are we to believe that interns in education
who wear, for example, an Islamic headscarf are a bad example for children? Doesn’t forcing
religious symbols out of several workplaces, despite the absence of any complaints regarding
proselytization, only serve to validate prejudices against minority groups? Doesn’t the grandfather
clause, as currently written, simply serve to segregate employees from religious minorities into
their existing position without any hope of promotion unless they renounce a part of their religious
practice? Lacking better words of our own, we conclude this section with a quotation from the
Bouchard-Taylor report:
It may well be, it is true, that some people are shocked by the vision of an agent of
the State displaying his religious affiliation, regardless of his skills. How can we
explain this reaction? Might it be, in many instances, that it stems from a suspicion
or indeed an intolerance of religion in general or of minority religions in particular?
Should we restrict on this basis certain citizens’ free exercise of religion? In a
diversified society such as ours in which numerous religions and relationships with
religion mix, we must instead rely on learning to live together that fosters mutual
understanding and respect. How might we become accustomed to religious signs
with which the majority is not familiar if a number of key occupations are closed to
individuals for whom faith must express itself in the wearing of such signs? Does
not a more rigid secularism risk, once again, fostering community withdrawal rather
than integration?
Bouchard and Taylor 2008, 150
Taken together, all of these considerations lead us to the following recommendation, which
primarily addresses professions that follow directly from a university education.
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Recommendation 3
That Schedule II of Bill 21 be amended to remove lawyers, notaries, sheriffs,
commissioners, members of commissions, arbitrators, clerks, teachers, school principals
and vice-principals from the list of employees who are prohibited from wearing religious
symbols.
3. SERVICES WITH FACE UNCOVERED
Act R-26.2.01 (Act to foster adherence to State religious neutrality and, in particular, to provide a
framework for requests for accommodations on religious grounds in certain bodies) included a
provision that all public services had to be delivered with face uncovered (Article 10). This bill (21)
re-affirms that obligation, which had previously been suspended by the courts (Sioui 2017), and
adds a list of organizations and employees affected by the law.
This prohibition primarily affects certain types of full face veils, like the burqa, niqab, purdah, or
abaya (Lavoie 2014, Annex B). Our interpretation is that, if it is possible to identify someone and
if there are no security concerns, then it is possible to provide a service to that person while their
face is covered. For example, a woman wearing a burqa could be accommodated by first having
her identity verified by an available State security agent, according to her choice, and then
receiving a service with her face covered. An example of such a service in the university context
could be when taking an exam or receiving certain student services (e.g. help applying for certain
programs). In effect, the requirement to provide services to an individual only if their face is
uncovered affects “members of a body referred to in any of paragraphs 1 to 9 of Schedule I [in Bill
21] who receive remuneration," which includes universities and their staff. We therefore want to
ensure:
Recommendation 4
That accommodations be allowed regarding the obligation to receive services with an
uncovered face.
More generally, we also recommend removing universities from the field of application of
obligations surrounding services with an uncovered face, to ensure that students who wear an
article of clothing that covers their face for a religious reason can access their university’s services
and avoid repeated or burdensome administrative processes to receive those services. As such,
in the interest of guaranteeing the accessibility of services, we recommend:
Recommendation 5
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Brief on Bill 21
That educational institutions at the university level be removed from the list of organizations
enumerated in paragraph 7 of Schedule 1 in Bill 21.
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Brief on Bill 21
4. NOTWITHSTANDING CLAUSES
By virtue of Article 33 of the Canadian Charter of Rights and Freedoms, it is possible for a
provincial legislative assembly to exclude legislation from the application of Article 2, on
Fundamental Freedoms, and articles 7 to 15, on Legal Rights, under the Charter. The use of this
clause, known as the notwithstanding clause, allows for the adoption of a legislative act that may
otherwise run counter to these provisions of the Canadian Charter (Assemblée nationale du
Québec s.d.).
Use of the notwithstanding clause allows lawmakers to sidestep fundamental rights like the
freedom of:
- conscience and religion;
- thought, belief, opinion, expression, and the press;
- peaceful assembly;
- association ;
as established by Article 2 of the Canadian Charter. As for Articles 7 to 15, use of the
notwithstanding clause exempts a law from respecting important legal guarantees, such as:
- the right to life, liberty and security of the person;
- the right to be secure against unreasonable search or seizure;
- the right not to be arbitrarily detained or imprisoned;
- the right to be protected against cruelty;
- and the righty to equality.
Use of the notwithstanding clause is rare and limited to exceptional circumstances. In 2016, there
were only five laws in effect in Quebec that invoked the notwithstanding clause under the
Canadian Charter (Rousseau 2016, 1). For comparison, over 500 laws are currently consolidated,
adopted, and in effect in Quebec (Publications Québec s.d.). That is to say, only an infinitesimal
number of current laws use the notwithstanding clause.
Another particularity when using the Canadian Charter’s notwithstanding clause is that the
exemption it provides “shall cease to have effect five years after it comes into force or on such
earlier date as may be specified.” Far from concluding the debate on secularism, the Government
of Quebec is in effect just rendering it cyclical, as it will now re-occur every five years.
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Brief on Bill 21
Like the Canadian Charter, it is also possible to adopt a law that is exempt from Articles 1 to 38 of
the Charter of Human Rights and Freedoms, also known as the Quebec Charter, by virtue of
Article 52 under that same Act. The articles in question lay out an individual’s fundamental
freedoms, political rights, legal rights, and rights to equality. In 2016, only 11 laws in effect were
exempted from the Quebec Charter (Rousseau 2016, 1).
Historically, the notwithstanding clause has been used in the interests of disadvantaged
individuals, such as individuals with a disability or minority groups that face discrimination based
on the colour of their skin, their religion, their sexual orientation, their gender, etc. For example,
past uses of the notwithstanding clause served to:
- Authorize representation by a lawyer in small claims court;
- Allow closed session audiences under the Youth Protection Act;
- Avoid delays in decisions regarding conditional release;
- Create affirmative action programs (e.g. for individuals with a disability);
- Provide grants to encourage the development of a new generation of farmers (18 to 40
years old);
Rousseau 2016, 7-11
Each of these examples, and many others like them, show how the notwithstanding clause has
been used to help, support, and protect disadvantaged groups. These cases bear no relationship
to the example of Bill 21. However, some people have compared the use of the notwithstanding
clause in the Laicity Bill to its use in Bill 101 (Charter of the French Language) (Duchaine 2019).
However, it is worth remembering that Bill 101 was first adopted in 1977 without using the Quebec
Charter’s notwithstanding clause. In 1988, the sections regarding unilingual signage were
subsequently deemed unconstitutional by the Supreme Court under both the Quebec Charter,
adopted in 1975, and the 1982 Canadian Charter (Ford v. Québec). It was only then that the
Government of Quebec used the notwithstanding clause, by invitation of the Court itself: “If it is in
the public interest, use the notwithstanding clause” (Citation drawn from Bourassa s.d.; translated
from the original). The Act was then modified in 1993, and use of the notwithstanding clause was
no longer necessary (CEFAN 2016). As such, we cannot see how any equivalencies can be drawn
between Bill 101 and Bill 21 in good faith.
We therefore call on the government without equivocation to remove the notwithstanding clauses
from this bill. Eight days before tabling Bill 21 at the National Assembly, Minister Jolin-barrette
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Brief on Bill 21
stated that he was “convinced that the proposed law [from his government] respects the Canadian
constitution." (Auger 2019) If that’s true, then there is no valid reason to use the notwithstanding
clauses. Remember, this bill will call the fundamental freedoms of numerous university students
into question as well. We therefore recommend amending the bill to remove its use of the
notwithstanding clauses.
Recommendation 6
That Articles 29 and 30 be withdrawn from Bill 21 on State Laicity.
5. POSITION ON BILL 21
Bill 21, as proposed, seems to not only contravene the fundamental rights of numerous
individuals—including interns, students, and future professionals―it also serves to reduce the
accessibility of both education and many professions. We find that this bill, barring deep and
substantive changes to many of its articles, is both unacceptable and ill-advised, particularly due
to the risk that it will feed into the discrimination faced by several minority religious communities
and block certain groups of individuals from accessing given professions (such as teaching). As
such, we are opposed to Bill 21 as proposed.
Recommendation 7
That the Quebec Student Union oppose Bill 21 as proposed to the Government of
Quebec’s 42nd legislature on March 28, 2019.
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Brief on Bill 21
CONCLUSION
Described as an attack on fundamental freedoms, incoherent legislation, the solution to a problem
that doesn’t exist, and discriminatory, Bill 21 clearly does not benefit from a social consensus. This
brief contributes to these criticisms by presenting issues specific to university students. We call
on the government to review the proposed bill on laicity so as to exclude interns and professionals
working in education and law who do not exercise coercive authority. We also want to ensure that
recipients of public services are able to access accommodations to ensure they are able to receive
services with their faces uncovered without impeding their identification or ignoring security
concerns. Excluding universities from the obligation to provide and receive services with an
uncovered face is also an option to protect students who would be affected by this act. Finally, we
recommend removing the notwithstanding clauses from Bill 21.
Each of these demands are made on behalf of the interns and students we represent who would
be negatively impacted if the bill on State laicity were to be adopted as presented at the National
Assembly in late March. The government’s rush to adopt this bill is also a cause for concern, as
the fundamental freedoms of numerous students hang in the balance. Indeed, very little time has
been set aside for consultations by the government, which has also floated the idea of imposing
a closure to limit debate on the bill (Lajoie 2019-b). The government’s timeline for adoption seems
far too short for such an important bill, which would have such important effects on Quebecers
and Quebec society. For all of these reasons, we must condemn and oppose the adoption of this
bill as it stands.
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Brief on Bill 21
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