Bill 21:
Nobody Here but Us Chickens

Québec’s Bill 21 prohibits the wearing of religious symbols for those in positions of authority, including teachers, lawyers, police officers, judges and politicians.  Government justification for the prohibition is based on the “laïcité” (secularity) of the state; it is argued that the religious neutrality of the state supports the equality of all citizens and freedom of conscience and religion.  It is the government’s view that the wearing of religious symbols could impede the delivery of secular public services.

The law is popular within Québec; no provincial political party opposes it.  In fact, no federal political party opposes it.

Despite the legislation’s reference to “freedom of conscience and religion”, it is clear that the law is intended to restrict the symbolic expression of certain religious faiths.  As such, the law would appear to conflict with the first of the fundamental freedoms of the Canadian Charter of Rights: “freedom of conscience and religion”.  The Government of Québec explicitly recognized the potential for such a conflict, and has invoked the “Notwithstanding Clause” (Section 33) of the Charter to head off a challenge to the constitutionality of the restriction on the expression of religious belief.

It is simply staggering that no political party, provincial or federal, has spoken out against Bill 21’s violation of basic Charter freedoms.   The fact that the law is popular underlines precisely why the Charter is necessary.  In proclaiming the Charter nearly 40 years ago, then Prime Minister Pierre Trudeau said: “…if individuals and minorities do not feel protected against the possibility of the tyranny of the majority … it is useless to ask them to open their hearts and minds to their fellow Canadians.[1]”  The Charter exists to protect Canadians against legislation, even popular legislation, which restricts their fundamental freedoms.

For federal politicians, it is more than fatuous to assert that Bill 21 is a provincial matter; it is actively pernicious.  No government, federal or provincial, should be granted the right to restrict human rights.  The current Prime Minister, Justin Trudeau, should stand in shame before the legacy of his father, author of the Charter.  The current Leader of the Opposition, Erin O’Toole, should be equally shamed given the history of his party, which allowed Sikhs to wear turbans as RCMP officers and which established an office of religious freedom to resist restrictions on religious freedom in other countries.  The current leader of the New Democratic Party, Jagmeet Singh, is not willing to fight against legislation which would prohibit him from serving as a member of the Québec legislature, because he wears a turban.  The spineless opportunism of our political leaders is on tawdry display.

Agreed that a federal challenge to the constitutionality of Bill 21 would spark a political uproar in Québec, and would be unpopular within the province.  As well, there is a risk that the debate would turn more on the question whether the federal government should have any role in challenging this, rather than on the validity of the violation of human rights.

The probable reaction of Québec is a significant problem.  However, it is also a significant problem that the human rights of certain Québécois are being restricted, at the present moment.  Further, if no challenge is made to the legislation, it opens the door for future possible provincial actions limiting rights, such as restrictions on language or indigenous treaty rights.

At the moment, individuals and groups are challenging the legislation in the courts.  The federal government is saying nothing about this case.  The lack of even mild censure from the government is deeply saddening.

Federal intervention need not exercise its full power to disallow the legislation, though such a weapon exists.  Not need it make a direct reference to the Supreme Court, though it has that power.  And perhaps it can wait to join as an intervenor while the matter is in the provincial court system.  But it should not remain silent on the human rights question.  The federal government should not stand cravenly by while human rights are being taken away.

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[1] Pierre Trudeau, April 7, 1982: Proclamation of the Constitution of Canada and the Charter of Rights and Freedoms