Could conscientious objection defeat Quebec’s secularism law?
Constitutional lawyer Julius Grey says Quebec’s proposed secularism law could be fought using the tactics of the civil disobedience movement that helped speed the end of the Vietnam War, undo segregation laws in the United States and abolish federal abortion laws in Canada.
As municipalities, school boards and teachers’ federations promise to defy Bill 21, which would ban government employees including police officers and teachers from wearing religious symbols, Grey is suggesting those acts of defiance could contribute to the eventual dissolution of the regulation if it becomes law.
Other constitutional lawyers are studying ways to challenge the proposed legislation, including battling the issue in court.
“Defying the law is a well-established legal activity in certain circumstances,” Grey told the Montreal Gazette. “It has to be very narrowly circumscribed — there has to be a very special conscience-driven concern. I think there may be an issue in this case if you are asked not to hire certain people, or promote certain people.
“I’ve always maintained that disobedience ultimately changes the law.”
Precedents can be found in the actions of U.S. students who refused the draft for the Vietnam War, or black citizens who would not sit in segregated areas on buses or in movie theatres in the 1950s. Those who defied were arrested and charged, “but gradually the refusal to live by those laws had an effect.”
The same could be said of Canadian juries who refused to pronounce Montreal abortion clinic doctor Henry Morgentaler guilty, despite clear legal guidelines that showed he was guilty.
“It was a principled refusal to follow the law, on a narrow issue,” Grey said.
On Saturday, Montreal West Mayor Beny Masella promised he would not obey any law that bans government employees from wearing religious symbols, following in the paths of the English Montreal and Lester B. Pearson school boards, and the municipality of Côte-St-Luc and Westmount city councils. Masella said all members of the Association of Suburban Municipalities, of which he is the president, oppose any provision of Bill 21 that applies to municipal hiring.
In today’s relatively conservative society, the concept of defying the law makes many “shudder with horror,” Grey said.
But in the 1950s, ‘60s and ‘70s there was considerable debate on the concept of civil disobedience and what famed American philosopher John Rawls called “conscientious refusal.”
“So if my conscience says when I interview people I can’t look at religion, I can’t look at gender, I can’t look at sexual orientation, and you are forcing me to look at religion, I must say I can’t,” Grey said.
Because the Legault government has invoked the notwithstanding clause, which normally pre-empts court challenges and overrides both Canada and Quebec’s charters of rights and freedoms, Grey said the first recourse is to bring Bill 21 before the United Nations Human Rights Committee.
If that fails, those who would deny it can do so on the basis of conscience, he said.
The Quebec government could theoretically hit institutions that refuse to comply with charges in court, an injunction, or the possibility of withholding funds.
The office of Quebec Immigration Minister Simon Jolin-Barrette did not respond to questions Monday regarding how defiant institutions would be penalized. Spokesperson Marc-André Gosselin said all parties are invited to take part in the parliamentary debates on the issue, and “we are confident that at the end of the process, they will apply the law.”
Catherine McKenzie, the legal counsel for the Canadian Civil Liberties Association and the National Council of Canadian Muslims — both of which intend to fight the bill — said experts are still investigating legal challenges.
They include exploring whether Bill 21 relates to areas of the Canadian and Quebec charters of rights and freedoms where the notwithstanding clause cannot be used; whether the provincial government is overstepping its jurisdiction and straying into federal territory; and whether the law could be defying international treaties.
They will also study whether the bill violates fundamental principles of the rules of law, including whether it is understandable by citizens, because it doesn’t define what religious symbols are or set out a process to enforce the law.
“A first potential step might be to get a stay from having the law go into force,” McKenzie said. A case like this could be appealed all the way to the Supreme Court of Canada.
“Despite the government saying over and over again that this will all be settled by June, if there are legal challenges — and there already is a legal challenge (one of the province’s largest teachers’ federations is taking the government to court to block any future head count of teachers who wear religious symbols) — this could take years,” McKenzie said.