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Courtroom Log of Hak versus AGQ: Week 1

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The Act respecting the laicity of the State (Bill 21) Before the Courts
Summary of the first week, 2nd – 6th November 2020
Quebec Superior Court

David Rand

2020-11-09

In the Same Series:

The first week of legal proceedings of the case Hak versus Attorney-General of Quebec (AGQ), dossier #500-17-108353-197, has drawn to an end in Quebec Superior Court at the Montreal Court House. Bill 21 is being contested by some eighteen opponents (individuals and organizations) who are attempting to have this secular legislation repealed.

In the opposite camp, in support of Bill 21 and secularism, we have of course the Province of Quebec, represented by its Attorney-General, as well as three intervenors: the Mouvement laïque québécois (MLQ, Quebec Secular Movement), the organization Pour les droits de femmes du Québec (PDF-Q, For Women’s Rights, Quebec) and finally, ourselves Atheist Freethinkers (AFT, also known as LPA in French). We are supported in our efforts by our friends of the Rassemblement pour la laïcité (RPL, Alliance for Secularism), a coalition in which we participate.

I attended via webcast almost all of the sessions this week. For technical reasons, I missed the very beginning, the morning of Monday November 2nd, when the principal complainant, Ms. Ichrak Nourel Hak, gave her testimony. So for that session I will count on the excellent observational skills of Louise Mailloux who informs us, in her blog published on the RPL website, that Ms. Hak based her testimony on the idea that wearing the hijab is an obligation of the Islamic faith while simultaneously declaring that it is her choice! According to Ms. Mailloux, Ms. Hak said nothing either to resolve this paradox or to explain the symbolic meaning of the Islamic veil.

To sum things up succinctly, secularism was hardly even mentioned during this week’s proceedings. The one exception was the testimony of Jocelyn Maclure—an expert for the English Montreal School Board (EMSB)—who briefly explained the difference between so-called open secularism and republican secularism, Bill 21 being closer to the latter, but then apparently took a position in favour of the former without really explaining the reasons for his choice. Most of the expert testimonies were greatly compromised by a number of tacit assumptions and, as a result, had little or no relevance for Bill 21. In fact, the most salient theme of this week was what was not discussed.

We can recognize at least five major currents among the various testimonies given this week:

  1. Rejection of the idea that a religious symbol can be removed when going to work and the implicit assumption that it the State that must accommodate the believer, not the other way around.
  2. An overwhelming concern for how government measures are perceived, especially by those religious minorities who may feel targetted, rather than for the real actions of those measures.
  3. An overwhelming emphasis on what a religious symbol means to the believer wearing it, rather than on how it may be perceived by others or on the symbol’s objective signification. Ignoring the latter results in an overly narrow comprehension of the concept of proselytism.
  4. A very wide, indeed even false, definition of the concept of prejudice.
  5. Conflation of different types of minority groups, ignoring the characteristics which make racial, religious, sexual orientation or other types of groups qualitatively distinct from each other—thus ignoring the particular characteristics of religious identity.

Sacred Underpants

The first theme was very present in the testimony of Ms. Hak who considered it unthinkable for her to remove the hijab before going to work. A similar attitude was displayed by Amrit Kaur, a witness for the World Sikh Organization of Canada (WSO), who was the second person to testify Monday (by video-conference from British Columbia). Ms. Kaur is a baptized Sikh who wears not only a turban (two turbans to be precise, one under the other) but also four other “articles of faith” which she described in detail: a comb worn under the turbans; a bracelet or symbolic shackle on each wrist; the “kirtan,” a swath of cloth worn on the torso; and finally, the “kachera” or undergarment. Ms. Kaur explained that these articles must never leave her body, not even when showering. She swore to that when she was baptized. To remove them would represent the loss of her identity. She explained that, even when changing her undergarment, she keeps one leg in the garment being removed while inserting the other leg into the clean garment.

Obviously, in the context of Bill 21, only visible religious symbols are relevant. Thus, in this case, only the turban would be problematic. But, by listing this whole litany of articles, Ms. Kaur was trying—as was Ms. Hak—to convince the Court that her religious practice is so important, so essential to her life and identity, that it would be inconceivable to remove even one of these various objects when going to work as a teacher.

Thus, Mss. Hak and Kaur ask—no, they demand!—that the Quebec State repeal a democratically adopted law in order to accommodate their personal religious practices. What would happen if some individuals who practice nudity, or wear a knife on their body, or wear a colander on their head, made similar demands?

Erroneous Perceptions

At one point during the period between the CAQ’s election victory in October 2018 and the publication of Draft Bill 21 in March 2019, the new government asked schools to give an approximate count of the number of teachers wearing religious symbols, in order to get an idea of the size of the phenomenon.

The third witness on Monday, Ms. Messaouda Dridj, for the Fédération autonome de l’enseignement (FAE), is a Muslim woman born in Algeria and settled in Quebec since 2004. She wears the hijab, including when working as a teacher in a public school. In her testimony she repeatedly expressed her fear of being the target of unequal treatment because of her religion and her feeling of being singled out a lot. This count requested by the government caused her much anxiety. She was afraid of being documented in some government file. When a lawyer for the AGQ reminded her that the request was for only an approximate count—and certainly not the identities—of the teachers concerned, in fact only an order of magnitude, and that a response from each school was not even compulsory, Ms. Dridj persisted and declared, “Order of magnitude!” to express her mistrust—her voice shaking and her eyes tearful.

Richard Bourhis, a witness for the FAE and an expert in social psychology and discrimination, testifed Friday. He too spoke of the effects of this request for a count, but only from the point of view of religious minorities possessing only a limited knowledge of the measure. It could cause “stigmatization” and have effect which were “destabilizing and stressful for the persons concerned,” he said. Thus, the researcher Bourhis, just like Ms. Dridg, did not even consider the reality of this count request, but only the possible effects of an erroneous perception of it.

Similarly, the researcher Eric Hehman (for the FAE and the EMSB), in his testimony Thursday, told how he had performed a survey on a sample of some three hundred Quebeckers in order to study their perceptions of Bill 21, because, as he explained, it is the perception of a law which determines its effects on attitudes, rather than the law itself. His conclusion: the public associated Bill 21 first and foremost with Muslims, then, to a lesser extent, with Jews and Sikhs, whereas the public associated it very little with Christians and Buddhists. Hehman thus concluded that we can expect Bill 21 to generate negative attitudes towards religious minorities, and in particular towards Muslim women, and that that could have harmful consequences for those minorities.

And yet, Bill 21 does not discriminate against any religious group because it applies equally to all religions.

But in all three of these cases involving a government measure, whether the count request or Bill 21, erroneous perceptions of these measures were for the most part the result of disinformation spread by opponents of secularism. Among all the experts and witnesses who testified this week, no one raised this point: secularism is being held responsible for the falsehoods spread by its opponents.

Proselytism in the Narrow Sense and in the Broad Sense

The opponents of Bill 21 use a slogan which expresses rather well their total misunderstanding of the significance of a religous symbol: “It’s not what’s ON your head, it’s what’s IN you head!” That is, for them, it is the mentality of the person which counts, not the appearance. This is the attitude defended by the complainant Bouchera Chelbi, a teacher who gave her testimony Tuesday. She claimed to be open-minded. She rubs shoulders with atheists, gays, transsexuals, Coptic Christians, etc. Students experiencing difficulties open up to her readily. She denied the assertions made by Jacques Beauchemin, in a report commissioned by the MLQ, that the Islamist veil is a militant symbol and that religious symbols often “impose” something.

The theologian Solange Lefebvre (expert for the FAE and EMSB) expressed similar thoughts in her testimony which began Friday. She gave a narrow definition of “proselytism”—it means to act in order to recruit, with the goal of converting another person to one’s religion. She also rejected the statement made by Yolande Geadah, expressed in another report for the MLQ, that the Islamic veil is necessarily “patriarchal, sexist and misogynist.” According to Ms. Lefebvre, the veil can have various meanings. Different women, some of them even feminists, wear it for all sorts of different reasons, she said.

Thus, Mss. Chelbi and Lefebvre interpret the meaning of a religious symbol exclusively from the point of view of the bearer. They completely neglect both its objective significance and its possible effects on others. Symbols have meanings and effects which are independent of the intentions or the mentality of the person using them. The Islamic veil, for example, is a symbol of sexual and moral purity, a meaning which is firmly established in the history of Islam, and its purpose is to signal to others that the wearer is a good Muslim woman. Consequently, it also sends the message that other Muslim women who do not wear one are impure. This message will be communicated to those who are exposed to the symbol, and the message will be all the stronger if the wearer is a teacher or a civil servant in a position of authority.

According to the on-line dictionary Wiktionary, the definition of proselytism given by Ms. Lefebvre is correct but incomplete. Yes, to proselytize may of course imply an attempt to convert, but it may also mean simply “to advertise one’s religious beliefs.” Indeed, the effect of a civil servant wearing a religious symbol is to advertise that person’s beliefs and to communicate that they consider their religious affiliation is more important than their job, because they are neglecting their duty of religious neutrality, both in their actions and their appearance. Thus, the wearer violates the freedom of conscience of civil service users, especially if those users are schoolchildren.

Prejudice or “Postjudice”?

The problem with the word “prejudice” came up in the testimony of Eric Hehman who used an inexact definition of that term. He claimed that a prejudice is an attitude (negative, I presume) towards a group of people. Well, no. In both English and French (“préjugé”), the correct definition is much more precise than that: a prejudice is a judgment made beforehand, a preconceived notion. It is therefore an unjustified attitude, adopted out of ignorance.

On the other hand, an attitude or judgment based on information sufficient to draw conclusions is not a prejudice. Let’s call it a “postjudice” if you will. But the incorrect definition used by Hehman may compromise the quality of his research, because for him any negative attitude is a “prejudice.” Given that his conclusions deal with Quebecers’ attitudes, the result may easily stigmatize Quebecers.

Conflation of Categories

Among the diverse implicit assumptions made in the testimonies heard this week, probably the most perverse is one which is all too familiar because we see it so frequently among the opponents of secularism: the habit of conflating several different types of group, in particular the conflation of race and religion. Of course the former describes immutable and innate attributes of a person, whereas religious affiliation is changable. This confusion implies the negation of freedom of conscience, as if each person were a prisoneer of the religion of his or her parents.

The research of Eric Hehman, for example, concentrated mainly on the effects of certain laws on homophobic attitudes, before he turned his attention to Bill 21. He admitted to the Court that, in his field of expertise, no distinction is made between different group identites—whether that identity be racial, religious or of sexual orientation. And yet, that distinction is important, because a negative attitude towards a religion or towards some of its adherents may be based on completely legitimate considerations, whereas a negative attitude towards those of a given racial identity or sexual orientation cannot be justified.

Paul Eid, sociologist and an expert (for the FAE and EMSB) in racial, religious and ethnic discrimination, is known for his work in the past for the Commission des droits de la personne et des droits de la jeunesse du Québec (CDPDJ) in which he spelled out the possible conflict between freedom of religion and the right to sexual equality. But in his expertise presented Tuesday, he frequently used terms such as “Islamophobia” and “racialized,” indicating, once again, that familiar bad habit of conflating race and religion. The judge interrupted him to ask why one would mix groups of different types—religious, ethnic, racial and regional—when compiling hate-crime statistics. He asked Mr. Eid to explain the term “racialized.” The judge also asked him how hostility towards religious minorities could be confused with racism. Eid’s only response was to reject that distinction and to say that he did not understand the last question. And, once again, he referred to so-called “Islamophobia.”

Thomas S. Dee, a professor at Stanford University and an education expert (for the FAE and EMSB), specializing on the impact of diversity, presented his testimony Wednesday, by video-conference from California. According to him, research results are conclusive: teacher diversity has beneficial effects on several levels, especially for students belonging to minority groups. Let’s give him a pass on the buzzword “diversity.” But what minority groups are involved? one might legitimately ask. Well, in the studies presented by Mr Dee, the groups involved were almost always racial, such as Afro-Americans. Once again, no effort is made to distinguish the different group types and there is no recognition of the qualitative distinction between a religious minority and a racial minority, between a religious identity and a racial identity. This conflation results in the essentialization of religious affiliation while completely ignoring students’ freedom of conscience.

Conclusion

Among the eleven witnesses and experts who testified during this first week of the proceedings, one remains to be mentioned: the professor David Gilles, expert (for the WSO) in law history at the Université de Sherbrooke. His expertise concerned religious law in Lower Canada during the period from the conquest and the Treaty of Paris in 1763, through to the Rectories Bill in 1852. I did not at all understand the relevance of this subject.

To conclude, I am very eager for the intervenors who support Bill 21—the MLQ, PDF-Q and ourselves Atheist Freethinkers—to have our day in Court and express our views. As an intervenor, we are confident that the Court will be able to properly judge the credibility and relevance of the various testimonies.

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