State Neutrality Does Not Always Result in Substantive Equality - LawNow Magazine

State Neutrality Does Not Always Result in Substantive Equality

Human Rights Law Column

Recently, Quebec Premier François Legault’s government introduced Bill 21 (An Act Respecting the Laicity [Secularism] of the State). Among other things, the Act prohibits public workers in positions of authority (e.g., teachers, police officers, prison guards, Crown prosecutors, government lawyers and judges) from wearing religious symbols (not defined in the Act, but presumably would include turbans, kippahs, crucifixes, hijabs, clerical collars, etc.).

The Act also prohibits receiving government services with one’s face covered. This latter provision was previously introduced in Bill 62 (s 10, which required people to remove face coverings when receiving government services), and was the subject of an injunction issued by Justice Marc-André Blanchard. Justice Blanchard held that section 10 appeared to be a violation of both the Canadian and Quebec Charters, “which protect freedom of conscience and religion” (see: “CCLA & NCCM Successfully obtain Renewed Stay Against Quebec’s Bill 62” (June 29, 2018)). The Quebec government, in passing Bill 21, seems to be responding to this earlier decision by invoking the Canadian Charter of Rights and Freedoms’ notwithstanding clause (See: Effects of the Notwithstanding Clause on Human Rights Law).

Finally, Bill 21 seeks to amend Quebec’s Charter of Human Rights and Freedoms to include the fact that the Quebec nation considers: “state laicity [secularism] to be of fundamental importance.” Again, this appears to be an attempt to prevent any court challenges to Bill 21.

However, this Bill demonstrates a very thin interpretation of equality. It harkens back to the days when formal equality required that: “like people should be treated alike”. The Preamble to Bill 21 explains that the Quebec nation “has its own characteristics, one of which is its civil law tradition, distinct social values and a specific history that [has] led it to develop a particular attachment to state laicity.” The Preamble also says that secularity should be “affirmed in a manner that ensures a balance between the collective rights of the Quebec nation and human rights and freedoms.” It notes that Quebec “attaches importance to the equality of women and men” — which is “an apparent reference to the concern expressed by some people that the hijab, the headscarf worn by some Muslim women, and the niqab, a Muslim veil, are symbols of female inferiority” (See: CBC News Benjamin Shingler, (28 March 2019) “What’s in Quebec’s secularism bill: Religious symbols, uncovered faces and a charter workaround”).

Laicity, according to section 2 of the Bill, is based on four principles: the separation of state and religions, the religious neutrality of the state, the equality of all citizens, and freedom of conscience and religion.

There are many people in Quebec who approve of the Bill. They see it as a way to ensure a clear division between religion and the state. At the same time, opposition to Bill 21 is growing, by minority groups and civil liberties groups, for example. One practical implication of Bill 21 is it could force some individuals to leave Quebec or to not enter public professions such as teaching. Some individuals are even advocating civil disobedience (e.g., refusal to remove religious symbols).

In 2007, the (Gerard) Bouchard-Taylor Commission came to several conclusions after investigating a “reasonable accommodation” crisis in Québec.  The report noted that there were widespread misperceptions about how institutions and religious minorities usually adapt to each other. Further, Francophones were nervous about the future of their language and cultural minorities worried about their place in Québécois society. Bouchard and Taylor have spoken out against Bill 21.

Although equality is stated to be an important value in Bill 21, it appears to be overshadowed by the value of secularism in the form of state neutrality. The stated aim of Bill 21 is to “enshrine the principles of secularism in Quebec law, and in doing so, protect the fabric of a francophone society in a globalizing and largely anglophone world.” However, this Bill demonstrates a very thin interpretation of equality. It harkens back to the days when formal equality required that: “like people should be treated alike”. This completely negated consideration of any adverse effects that a neutral law could have on persons who were members of minority groups. However, the advent of the Canadian Charter of Rights and Freedoms, s 15(1) has resulted in the wide interpretation that substantive equality is to be the norm in Canada. This means that even laws that appear neutral can be discriminatory if they impose burdens on some people based upon the grounds listed in s 15(1) or analogous grounds.

Applying a substantive equality analysis to Bill 21 could be described as follows: All public servants are prohibited from wearing religious symbols at work. However, there are some religions that require that religious symbols (e.g., turbans or kippahs) be worn in public. Thus, people whose religion requires the wearing of religious symbols are forced to either disobey their religious beliefs or face legal consequences. This apparently neutral rule has an adverse impact on some minority groups. This is a breach of substantive equality.

What can be done about Bill 21? Aside from political opposition and civil disobedience, many of the traditional avenues of challenge, such as a Charter challenge in court, are not available because the notwithstanding clause is included in Bill 21. Because the notwithstanding clause only applies to sections 2 and 7 to 15, some advocates are looking to challenges under other Charter sections. The Canadian Bar Association is lobbying Quebec to remove the notwithstanding clause from Bill 21. In addition, some argue that making laws about religion is a federal power such that Bill 21 is ultra vires (outside the jurisdiction of the province of Quebec). In the case of Saumur v City of Quebec, [1953] 2 SCR 299, four of the nine Supreme Court justices held that religious freedom fell within federal jurisdiction.

Nevertheless, it is clear that this is a law that demonstrates that state neutrality does not always result in substantive equality.


Linda McKay-Panos
Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

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