An Orgy of Hateful Hyperbole: Courtroom Log of Hak versus AGQ: Week 5

An Orgy of Hateful Hyperbole

The Act respecting the laicity of the State (Bill 21) Before the Courts
Summary of the fifth week, 30^th November – 4^th December 2020
Quebec Superior Court

David Rand

2020-12-10

In the Same Series:

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

For the fifth week of legal proceedings in the case of Hak versus Attorney-General of Quebec (AGQ), the Court heard oral arguments from several lawyers representing those opposing Bill 21. While the first four weeks of the trial were dedicated to testimony, examination and cross-examination of witnesses and expert witnesses for various parties, since Monday November 30^th the spotlight is on the lawyers.

I will not attempt the summarize all the oral arguments made before the Court this week. Rather, I will concentrate on the most outrageous arguments put forward by opponents of Bill 21. And there was indeed an abundance of arguments which defied all reason. This week, we witnessed an orgy of hyperbole, dishonesty, demagogy and hateful speech from the opponents of secularism.

Monday

Maître David Grossman compares Bill 21 to the oath of allegiance to the British monarch which, until its repeal by the Quebec Act of 1774, forced candidates for State employment to renounce the authority of the pope and the Catholic faith, thus excluding Catholics. The comparison is absurd, because Bill 21 does not require that anyone renounce their religion. According to Grossman, the abolition of this oath established the participation of minorities as a foundational principle of Canada. False. On the contrary, the abolition allowed the Catholic majority to participate. In order to malign Bill 21, the lawyer asks the rhetorical question, “Does the MLQ want the legislator to require that all public employees be baptized Sikhs?”

Maître Grossman declares that Bill 21 violates the principle of equal access to public institutions on the basis of “personal immutable characteristics,” as if wearing a religious symbol were equivalent to an innate and immutable attribute such as racial identity! The judge intervenes to question the use of the word “immutable” at which point Grossman replaces it with the expression “changeable only at unacceptable cost to personal identity.” But Grossman nevertheless continues to conflate the wearing of religious symbols with completely dissimilar identities such as race, sexual orientation, etc.

Another lawyer argues that if Bill 21 imposed State Catholicism (rather than State secularism) and made it compulsory to wear a crucifix (rather than banning religious symbols), the situation would be the same! This argument is absurd, based on an alleged symmetry which is obviously false. Bill 21 applies to all religions, not just one. Furthermore, imposing a compulsory symbol cannot be compared to banning all such symbols.

Given that Bill 21’s ban on religious symbols applies to judges, Maître Léa Charbonneau argues that this constitutes an an attack on judicial independence, undue interference on the part of the legislator in the judiciary. Even worse, she submits to the Court a formal request that the testimony of Yolande Geadah (week 3)—testimony very important to the defense, by the way—be rejected for reasons of irregularity and irrelevance.

Tuesday

According to Maître Julius Grey, Bill 21 constitutes undue interference in the English language school system. Moreover, according to Grey, this law has the great flaw of not respecting the distinct culture of the English-speaking community of Quebec, because this culture favours multiculturalism rather than the republican secularism on which Bill 21 is founded. The hypocrisy of this position is obvious. The opponents of Bill 21 seek to minimize the distinct nature of Quebec in the Canadian federation, not only its language but also its culture, and to deny its right to a regime different from that of the rest of Canada.

Wednesday

Maître Theodore Goloff (Lord Reading Law Society), his kippah strategically displayed, criticizes Bill 21’s preamble for its assertion of “collective rights” and for its declaration that “the paramountcy of State laicity be enshrined in Québec’s legal order.” In his opinion, the term “paramountcy” (“prépondérant” in French) establishes a hierarchy of rights, and is therefore incompatible with both the Canadian and Quebec Charters. According to Goloff, the Canadian Charter seeks to reconcile rights. However, that is precisely the aim of Bill 21, to reconcile the right of teachers and civil servants to freedom of expression with the right of students and users to secular civil services. But the opponents of Bill 21 completely ignore the latter.

Maître Rémi Bourget compares Bill 21 to Donald Trump’s Muslim ban.

Bourget claims that the attempt by the Quebec government to determine the number of teachers who wear religious symbols is similar to asking highly invasive questions about intimate personal details such as, for example, a person’s sexual orientation. However, the aim was to estimate the number wearing religious symbols, that is, symbols which the person wears ostentatiously, with the deliberate purpose of exhibiting his or her religious affiliation. Thus, the situation is exactly opposite to what Bourget claims.

Maître Bourget claims that the expert witness Georges-Auguste Legault said that a gay teacher should hide his homosexuality. This is false. Rather, the witness said that a teacher should not wear symbols of political activism, such as, for example, a rainbow bracelet.

Maître Bourget compared veiled women to transsexuals. When speaking of the ban on religious symbols, he asked the rhetorical question, When will it be transsexuals’ turn?

Thursday

Maître Bourget continues to obfuscate the important distinction between groups based on religious affiliation and groups of a completely different nature, such as racial, sexual orientation or handicapped groups, etc. He even declares that, by virtue of the concept of “racialized” persons used in sociology, all conclusions based on race can be applied to religious affiliation. Thus, Maître Bourget completely annihilates the concept of freedom of conscience which is essential to understanding religious affiliation. However, it is self-evident that religion and race are disparate notions, for the simple and obvious reason that one can choose one’s religion, but one cannot choose one’s race (or sexual orientation or handicap).

Maître Bourget denounces Bill 21 as a product of the wave of right-wing or extreme-right-wing movements which we see in Trump’s United States, or in Poland, or in Brazil.

Maître Bourget claims that Bill 21 is the result of the negative experiences that Quebecers had, previous to the Quiet Revolution, when the Catholic Church’s domination of Quebec society was overpowering. Thus, Bill 21 is motivated by an important residual anti-Catholic sentiment, applied unfairly to other religions. But simultaneously, Bourget asserts that Bill 21 is a manifestation of so-called “catho-laïcité” like that of Marine Le Pen. So that means that Bill 21 is both anti-Catholic and pro-Catholic? Well, which is it?

Echoing the words of expert witness Eric Hehman, Maître Bourget claims that the perception of Bill 21 (by the public, or by those persons who feel targeted by it) is more important that the letter of the law itself. Bourget also claims that, in order to understand the meaning of the Islamic veil, it is enough to consider what the veil means to the woman wearing it. Thus, in both cases, he rejects any objective analysis. The reality is that Bill 21 does not discriminate against anyone, either on the basis of religion or on the basis of sex, but Bourget doesn’t give a damn. According to Islamic tradition, the objective meaning of the veil is that of a purity symbol, that is, the veil implies that the Muslim woman wearing it is pure, whereas those who do not wear one are bad, impure Muslim women who deserve to end up in hell—but again, Bourget doesn’t give a shit.

Friday

Maître Azim Hussain compares Bill 21 to a law which requires all people of colour to sit at the back of the bus. On the contrary, a woman who willingly wears the Islamic veil is like a black person who willingly chooses to return to the back of the bus.

Hussain compares Bill 21 to the internment, during the Second World War, of Japanese-Canadians in concentration camps after all their property was confiscated. He adds that, “There was no Charter then, and the PGQ is saying there is no Charter now” because of the notwithstanding clause. In other words, this violation of the rights of Japanese-Canadians was made possible by the absence of a Charter, and the same situation applies today because of the Attorney-General’s use of the notwithstanding clause which allows it to violate rights today.

Hussain compares Bill 21 to the Nuremberg Laws, adopted by the Nazis in 1935, which led to genocide several years later. With such a comparison, he intimates that Bill 21 could be genocidal, at least potentially.

Maître Hussain, in his determination to discredit the testimony of the expert witness Jacques Beauchemin, refers to him as “an older white male heterosexual who does not wear a religious symbol.” Recall that, during Beauchemin’s testimony on November 18^th, Maître Hussain similarly called the teacher “a white man, of a certain age.” Also recall that, two days earlier, Maître Hussain also belittled another expert witness, professor Georges-Auguste Legault, by calling him “a white man” in order to discredit his testimony. Given that the sex, skin colour and sexual orientation are of no relevance in this context, we must conclude that Maître Hussain’s behaviour is objectively racist and sexist and, on top of that, discriminatory on the basis of sexual orientation.

The week draws to a close in an atmosphere of unbridled ridicule when Maître Rémi Bourget declaims before the Court, in a highly demagogic manner, a long passage from the famous poem “Speak White” by Michèle Lalonde, as if a parallel could be drawn between the rather trivial dilemma of a woman who must remove her religious symbol temporarily, and the economic, linguistic and cultural servitude of an entire people.

Summing Up

In their desire to vilify Bill 21, several lawyers used language which was outrageously exaggerated and sometimes highly grotesque. According to Maîtres Hussain and Bourget, the purpose of Bill 21 and its supporters is to promote not only discrimination against certain religious minorities (and against women) but, even worse, to foment genocide against those minorities. Such outrageous accusations constitute hate speech.

What In Fact Does Bill 21 Do?

Recall that Section 6 of Bill 21 bans the wearing of religious symbols by civil servants in certain positions of authority as specified in Schedule II of the Bill.

First of all, here are some things which the law does not do:

• Bill 21 does not exclude religious believers from those jobs.
• Bill 21 does not exclude from those jobs people who belong to a particular religion or set of religions.
• Bill 21 does not exclude from those jobs people who wear religious symbols.

This is what Bill 21 does do:

• Bill 21 excludes from those jobs people who wear religious symbols and who refuse to remove said symbols when they work in certain specific jobs.

Now, that set of persons, i.e. “people who wear religious symbols and who refuse to remove said symbols when they work in certain specific jobs,” is not a group protected by the Canadian Charter (Section 15) and neither does it fulfill the definition of an “identifiable group” as specified in Section 318(4) of the Criminal Code. That is, we are dealing with a set of persons which is defined not by its identity but rather by the behaviour of its members. We are in a situation precisely identical to anti-tobacco laws which do not exclude an identifiable group of persons from certain places, but rather ban certain behaviour—the act of smoking cigarettes or other tobacco products—in those places. Smokers are not excluded from these places. Rather, everyone is required to abstain from smoking tobacco inside those areas.

In conclusion, Bill 21 excludes no-one. Bill 21 does not target any identifiable group. Bill 21 does not target, nor does it favour, any minority or majority, whether religious or other. All it does is exclude a certain behaviour from certain specific contexts.

According to Maître Grossman, to remove a religious symbol can be done “only at unacceptable cost to personal identity.” Really? On the contrary, it is surely more difficult to quit smoking that it is to leave a religion, if one has one. But anti-tobacco laws do not require that. They require only that everyone abstain from smoking temporarily in certain areas. Bill 21 does not go that far either. Bill 21 does not require that one leave one’s religion or abandon one’s beliefs. It does not even require that one definitively abandon one’s religious symbol. Bill 21 requires only that everyone abstain from wearing one temporarily in certain contexts.

Are anti-tobacco laws genocidal? Neither is Bill 21. Any suggestion along those lines is not only completely grotesque; it defames those of us who support secularism.