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Courtroom Log of Hak versus AGQ: Week 2

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The Act respecting the laicity of the State (Bill 21) Before the Courts
Summary of the second week, 9th – 13th November 2020
Quebec Superior Court

David Rand

2020-11-21

In the Same Series:

Previously, during the first week of legal proceedings of the case Hak versus Attorney-General of Quebec (AGQ), all witnesses, including the principal complainant Ichrak Nourel Hak and ten others, were on the side opposing Bill 21. But during the second week, all testified in favour of Bill 21 with the exception of the theologian Solange Lefebvre who had not finished her testimony on Friday November 6th.

This article does not claim to be a complete account. I will only give a brief overview of each testimony.

Monday morning, Ms. Lefebvre’s appearance was completed with cross-examination. Luc Alarie (for the MLQ) asked her if atheism is a religion. Her reply: that depends, but we can say that under the Soviet communist regime it resembled one. Showing her the logo of our organization Atheist Freethinkers, he asked the witness if that symbol represented a religious conviction. When Ms. Lefebvre hesitated to answer, he reminded her that Paragraph 2(a) of the Canadian Charter applies to both non-believers and believers, to which she agreed. He then asked her again about the logo, but she would only say that the question was outside her field of expertise.

Christiane Pelchat for PDF-Q asked the Ms. Lefebvre if there is a link between the veil and modesty (pudeur). The witness replied that the purpose of the veil was to distinguish so-called free women from women of lower status. Can you confirm, asked Maître Pelchat, that Ms. Hak and other witnesses have testified in these proceedings that the purpose of their veil is to transmit a message? But she withdrew the question when a lawyer on the opposing side objected to it. Do religious symbols constitute proselytism?, asked Maître Pelchat. “Not necessarily,” was Ms. Lefebvre’s reply.

Education, Not Indoctrination

Monday afternoon, the court heard testimony from two witnesses for the MLQ, Ensaf Haïdar and Djaafar X.

Ms. Haïdar is well known for her tireless efforts to free her husband Raif Badawi, imprisoned in Saudi Arabia for many years for promoting freedom of expression. Having left that country in 2012 and arriving in Quebec in 2013 where she and her three children were warmly welcomed, she considers herself a non-practicing Muslim. Ms. Haïdar supports secularism because she wants her children to receive “an education which is not overly religious.” In her estimation, religious symbols have no place in schools. In particular, the Islamic veil makes women invisible and “is not a good image for Quebec.” Comparing her adopted country with her country of origin, she is shocked “to see four mosques in Sherbrooke, while I have never seen even one church in Saudia Arabia.”

Mr. X, second witness for the MLQ, is from an Algerian Kabyle background. He is married and lives in Montreal with two children who attend a school of the CSDM (Commission scolaire de Montréal). As for the wearing of religious symbols, he declared:

“I do not question the competency of those who wear religious symbols. This issue is not personal; it goes beyond that. But they should not wear such a symbol while teaching because it is not neutral, it is a form of proselytism.”

For him, the veil is a proselytizing Islamist symbol, worse and “more pernicious” than other religious symbols, a symbol which expresses exaggerated sexual modesty, as if the woman’s hair were part of her nudity. He does not want his children to be exposed to that. Furthermore, “the veil is an affront to my dignity as a man, as if the woman wearing it considered me to be a predator.”

Mr. X. revealed that one of his children had a teacher for the Ethics and Religious Culture (ERC) course who wore the veil and that, while teaching this course, she accorded more time to Islam than to other religions.

In accordance with Bill 21 which guarantees secular public services, the witness and several other parents requested that their school provide, for their children, teachers who did not wear religious symbols, but this request was refused.

This story was reported in the media. During cross-examination, Maître Azim Hussain (opposing Bill 21) accused the witness at least three times—by way of questions which were not really questions—of seeking out the media, an allegation which the witness denied categorically. Formulating another accusation in the form of a question, Maître Hussain even declared, “Do you want this teacher to end up unemployed?” Maître Pelchat objected to this question as being irrelevant and the judge accepted the objection. Indeed, the witness had made it repeatedly clear that his goal was to seek a solution without personally targeting this teacher, in order to avoid possible conflicts.

Finally, Monday’s session ended with the testimony, for PDF-Q, of a woman of Algerian origin, living in Quebec since 2011, who identified herself only by her first name, Faroudja. She told the court how she had experienced the rise of Islamism in Algeria and saw no future for her children in that country. As a non-practicing Muslim, she draws a distinction between morality, which is universal, and religion. Her children attend a public school because she wants them to receive a non-religious education, without indoctrination. “The teacher is a role model for the child and must remain neutral.” For Faroudja, the hijab is a symbol of the inferiorization of women, a very bad model which indicates that a woman’s body does not belong to her. “I left Algeria in order to escape that!” she said. In her opinion, to wear an Islamic veil is not really a matter of choice, but always the result of some sort of pressure. Even if the woman says that it is her choice, it is nevertheless unacceptable for her to teach while wearing it.

Passive Proselytism and the Inferiorization of Women.

The next day, Tuesday, began with the testimony, for the MLQ, of Nadia El-Mabrouk whose background is Tunisian and Muslim. She remembers a time in Tunisia when “We practiced religion in a relaxed way,” but fundamentalist Islamists from Egypt arrived and gained influence, promoting the veil and claiming that women who did not wear it would go to hell. Her husband’s background is Catholic and they both have non-religious values. In her opinion, teachers have a duty of religious neutrality and must not wear any religious symbol. There should be no religious education in schools.

Ms. El-Mabrouk explained further. Children must be protected from all forms of proselytism, both active and passive. Equality between women and men is crucial. The veil transmits the message that women must hide their hair so as not to enflame men’s passions. This is demeaning for both women and men, as if all boys were sexual predators. The veil presents a very bad image of Islam, symbolizing the inferiorization of women, and is an aberration rooted in political Islam.

The veil is not a positive model and does not in any way promote openness or living together. Wearing the veil is incompatible with the educational mission of schools. Even if worn by choice, it is still a marker of “virtue” which implies that women who do not wear it are not virtuous. The pressure on girls is enormous. Whether in Quebec, Algeria or Tunisia, the meaning of the veil remains the same.

Ms. El-Mabrouk does not oppose the veil everywhere, but only in State institutions, and in particular in schools, because wearing it in these places is a form of passive proselytism. Let people do what they want and wear whatever they want elsewhere, but not in schools. “Schools are meant to serve children and their parents. Their purpose is not to serve teachers.” Furthermore, “a teacher who is adamant about wearing the veil even in class raises serious concerns that she may also be actively proselytizing.”

As for the ERC program, Ms. El-Mabrouk proposes that it should cover the topic of secularism instead of promoting a falsely positive view of all religious practices.

When cross-examined by Maître Rémi Bourget (FAE), who pointed out that both the Canadian and Quebec Charters protect freedom of religion, Ms. El-Mabrouk responded that Bill 21’s ban does not compromise freedom of religion. On the contrary, it only imposes a limit on freedom of expression while on the job.

Finally, François Dugré, a professor of philosophy and father of two children, testified for the MLQ. He underscored the importance for teachers of religious neutrality, including the perception of neutrality, and criticized the ERC program which prevents any free and open examination of religions. He also denounced the racialization of the issues surrounding secularism and the gratuitous accusations of racism directed against parents who request nothing more than secular instruction for their children.

Different Philosophical Approaches to Secularism

For the end of Tuesday’s session and again Wednesday morning, the court heard the testimony of Marc Chevrier, professor of political science at UQÀM (Université du Québec à Montréal), expert in political thought and political regime for the AGQ. For professor Chevrier, the sovereign modern State, asserting itself independent of all religious questions, developed after the Renaissance. He defined secularism by four principles: (1) separation between the sovereign State and religions, the latter being entirely submitted to State law; (2) the religious neutrality of the State; (3) freedom of conscience and freedom of religion; and (4) civic pluralism. Of these four principles, Chevrier hesitated to name one as being more important than the others, but finally suggested that separation might indeed be paramount, and that this principle is indeed the more important in Bill 21.

Chevrier noted that the Bouchard-Taylor Commission had opted for so-called “open” secularism, but without any consensus on that point. Indeed, the report of the Commission itself recognized this absence of consensus. How would Bill 21 be classified relative to the two major currents of secularism, the liberal tradition of John Locke or the republican tradition of Jean-Jacques Rousseau? To answer this question, Chevrier noted that Bill 21, although having liberal aspects, is related to secularism in the French tradition, as well as with rationalism and universalism. Although religious neutrality does not imply constraints on religious expression in the private and public social spheres, such expression may indeed be limited in the space belonging to the State.

When Maître Roberts (AGQ) asked professor Chevrier, “What do you think of the link that some make between racism and secularism,” Maître Rémi Bourget objected that the question was beyond the witness’ expertise. Unfortunately, Maître Roberts withdrew her question without attempting to justify it.

In his cross-examination, Maître Hussain raised the fact that Bill 21 does not ban symbols displayed on buildings. He asked professor Chevrier if he agreed that “Catho-secularism allows Catholic practices but not the practices of other religions.” Maître Hussain asked this same question several times, slightly reformulating it each time, but each time insisting, attempting to get the witness to recognize the term “Catho-secularism.” Maître Roberts (AGQ) objected at least three times during this exchange. The juge rejected each objection, but ended by reassuring the witness: “You are under no obligation to attach a label.” But professor Chevrier stayed the course, finally declaring: “Bill 21 does not privilege any religion. Bill 21 does not accommodate Christians. It is secularism.”

History of the Church and Secularism in Quebec

Wednesday afternoon, the court heard the testimony of professor Yvan Lamonde, expert witness for the AGQ, recipient of a Killam grant and a Governor-General of Canada Award. Professor Lamonde gave an overview of the history of the Catholic Church in Lower Canada starting with the British Conquest and in Quebec up until the Church entered its decadent phase in the mid-twentieth century when it was superceded by the Quiet Revolution and the welfare State.

Lamonde pointed out that it was the Catholic Church which first promoted the wearing of religious symbols. This was a deliberate policy whose goal was to make faith visible, to display beliefs ostentatiously.

According to Lamonde, the Bouchard-Taylor Commission failed to harmonize the liberalism of individual rights (inspired by John Locke) with the concept of common good (à la Rousseau) because it went no further than liberalism. The civil aspect must take priority in society, because that is what brings people together. The civil must take precedence because it unites. Religious identity must be secondary. Public schools are for the citizen as citizen, not as believer. This is all the more important in that here in Canada, ever since the 1980s, individual rights have taken over, as if the common good were in a blind spot. The rights of minorities have become a very burdensome phenomenon, explained professor Lamonde.

Federalism and Provincial Autonomy

Professor Benoît Pelletier of the Law Department of the University of Ottawa and specialist in comparative federalism testified as an expert witness for the AGQ during more than half of Thursday’s session. For professor Pelletier, Canadian federalism is the sum of federal sovereignty and the various provincial sovereignties. Provincial autonomy is constitutionally protected. Self-determination within each provincial territory applies, in order to protect the particular identity of that province. In 2006, Quebec was recognized by the Canadian Parliament as constituting a nation. The situation is asymmetric: Quebec is a distinct society which may develop its own identity, its own specificity.

As for the so-called “notwithstanding” clause which Bill 21 references, it originated during the night of November 4th to 5th, 1981. Several western provinces were resistant to the Charter which strengthened the constitutionalization of rights, but they agreed to accept it on condition that the notwithstanding clause be added. This compromise allowed the repatriation of the Canadian constitution. According to professor Pelletier, without the notwithstanding clause, Quebec might no longer be part of Canada, because the 1995 referendum might have had a very different result.

In the context of provincial autonomy, Bill 21 makes perfect sense. As professor Pelletier explains, we have here a collective choice, a choice made by the National Assembly, an expression of Quebec’s identity. It is a progressive and collective measure.

Like professor Lamonde, professor Pelletier sees the danger of giving total priority to individual rights without taking sufficient account of collective rights.

The Weak Religiosity of Quebecers

At the end of the day Thursday and all day Friday, the court heard the testimony of two experts, professors Gilles Gagné and Yannick Dufresne, co-authors of a report prepared for the AGQ.

Gilles Gagné is an expert in the sociology of law, the sociology of the history of the Quiet Revolution and sociology of Quebec. He explained that for several decades Quebecers have become less and less religious and more and more secularized, while in the rest of Canada (ROC) religiosity has not changed so much. Quebecers tend to support the State, being influenced by French rationalism, and State secularism is one aspect of that support. Accusations of xenophobia directed against Quebecers are unfounded. Rather, it is Quebecers’ lower religiosity which explains the difference between Quebec and English Canada.

Professor Gagné expressed his disagreement with Paul Eid who overuses the term “racism” to the extent that he distorts its meaning, because his “racialist” approach projects a phenotype onto characteristics which are not of that nature.

During cross-examination, Maître Hussain criticized the professor for failing to mention, in his report, either antisemitism in Quebec or the massacre at the Quebec City mosque in January 2017. To emphasize his reproach, Hussain even listed the names of all six killed in the massacre. Hussain went on to pose several questions which were not really questions, such as “Would you agree that religious hatred is socially acceptable but that racial hatred is not?” and “Are you familiar with the expression: tyranny of the majority?” His obvious goal was to undermine any distinction between race and religion in order to accuse supporters of Bill 21 of racism.

In one of his various responses, professor Gagné declared that there are religious hatreds which have no racial connotation.

Throughout this altercation, no-one unfortunately mentioned certain essential points, for example: (1) when race and religion are conflated, freedom of conscience, which is of crucial importance, is totally neglected; and (2) there is such a thing as the tyranny of the minority as well.

The battle of words continued with the cross-examination by Maître Rémi Bourget who asked professor Gagné if he would agree that Quebecers are less well educated that people in the ROC. Gagné replied that that was certainly true in the past, but that the situation had improved significantly since. And is it not true that negative attitudes towards ethnic and religious minorites are more pronounced among the poor?, asked Maître Bourget. Yes, of course, replied the witness, that is well known; it explains the rise of various forms of populism. Thus, continued Bourget, perhaps it is not the weaker religiosity of Quebecers, but rather their poverty, which explains their support for Bill 21? It was at this point that professor Gagné delivered the most scathing comeback given during these two weeks of legal proceedings:

“It didn’t work when you tried racism, so now you are trying ignorance? No, it is the lower level of religiosity which is strongly correlated with support for secularism.”

The week ended with the testimony, Friday afternoon, of Yannick Dufresne, professor at Université Laval and expert in public opinion and in Canadian and Quebec politics. Professor Dufresne is co-author, with his colleague Gagné, of a report prepared for the AGQ whose purpose was to study the level of support for secularism of Quebecers and Canadians in the ROC and to explain the difference between the two. They used a sample of 2000 persons for this study, controlled for socio-demographic variables. They considered three possible hypotheses to explain the difference in support for secularism: (1) degree of religiosity; (2) liberal values; and (3) attitudes towards ethnic and religious minorities. Their conclusion: the first hypothesis, i.e. the weak level of religiosity of Quebeckers, is by far the most strongly correlated with their greater support for secularism.

As lawyers for opponents of Bill 21 had not completed their cross-examination of professor Dufresne, his testimony was scheduled to continue next week.

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