In his more than three decades as a litigation lawyer, Gregory Bordan has worn a kippah – to the office, with clients, in the courtroom.
“The respect I have always been given, by not only judges but court officials, is a source of pride. My experience has been nothing but positive,” he said. “I hope very much that doesn’t change.”
Bordan, who practises at Norton Rose Fulbright Canada, is not a Crown prosecutor and therefore not subject to Quebec’s new secularism legislation, but he could be at some point through a lesser-understood aspect of the law.
“If my firm signs a contract with any ministry or governmental commission, I would not be allowed to work on that if it entails going to court, or even meeting with colleagues, at a different firm or any third party,” said Bordan, who specializes in corporate and commercial litigation, as well as constitutional law.
On Sept. 27, Bordan filed a contestation of the Coalition Avenir Québec (CAQ) government’s secularism law, based on the Canadian Constitution and legal protections of religious freedoms that existed long before, even pre-Confederation.
He is acting on behalf of Coalition Inclusion Québec (CIQ), an umbrella group of citizens of diverse faiths and interests that was formed to oppose An Act respecting the laicity of the State (the official English translation).
A centrepiece of the CAQ platform before it was elected to a majority government last October, the bill was introduced in March and hastily passed three months later.
The three plaintiffs named are teachers: one is a Catholic who wears a cross and the others are Muslim women who wear hijabs. Bordan said the 30-page application makes somewhat different arguments than the challenge launched right after the law’s adoption by the National Council of Canadian Muslims and the Canadian Civil Liberties Union (CCLU). In addition, it raises fresh concerns about this “odious” law that is having “tragic” consequences for individuals today and taking Quebec society in a “disturbing” direction, in Bordan’s opinion.
Although the law provides a “grandfather” clause that exempts workers who currently wear religious symbols if they stay in their current posts, they would have to comply if their functions change, such as if they were promoted to an administrative job, he said.
Because of the law’s imprecision, Bordan said they could also be affected if they transfer to another school board or teach a different subject at their present school.
He emphasized that the law is not simply a dress code. “It’s not sufficient to focus on the ban on symbols,” he said. “The legislation is really transforming the position of religion in the province.”
Laïcité is not the same as the separation of church and state, as understood in the rest of Canada, he argues. That difficult to translate word, he contends, was chosen to “advance non-religion as a value.”
“They are saying, ‘We rejected Catholicism, now we expect others to do the same if they want to work for the state,’” Bordan said. “It’s a statement that what counts is what the majority wants; if what a minority wants conflicts with that, forget it.… This is a paradigm shift.”
The law invokes the Constitution’s notwithstanding clause to pre-empt any challenge based on the Charter of Rights and Freedoms. It also amends Quebec’s 1975 Charter of Human Rights and Freedoms to require all legislation to give primacy to laïcité.
Bordan is reaching way back before the Constitution Act, 1982, and even before Confederation, to give his case historical significance.
He traces the protection of religious practice to the Quebec Act of 1774 and other colonial-era guarantees that were part of the bargain between the British and French that led to the establishment of Canada. These rights were subsumed into the modern-day charter and are not subject to the notwithstanding clause, he maintains.
Even taking the charter alone, Section 28 enshrines the equality of women and men and the notwithstanding clause cannot override that, he said. He argues that the law disproportionately impacts women, especially Muslim women.
His first legal point is that the symbols ban is incompatible with the four “principles” cited in the law’s preamble, particularly “freedom of conscience and freedom of religion.” No court, he believes, would uphold an “Orwellian” contradiction like that.
Bordan is bringing to light what no one else has: that the law could encompass hidden, as well as visible, symbols, such as tzitzit. What constitutes a religious symbol can be broadly interpreted, he said. The law defines such symbols as any clothing, headwear, accessory or adornment that could “reasonably be considered” connected to religion.
“So, if I wore baseball cap instead of a kippah, it would be considered a religious symbol,” Bordan said.
The secularism law is a topic that federal leaders have tried to duck during the election campaign. Although those heading the major parties initially deplored it, they have muted their criticism since hitting the campaign trail.
Quebec Premier François Legault warned federal politicians in no uncertain terms not to get involved in any legal challenge to the law. On the campaign’s first day, he stated that, “My position is clear: if you talk about Bill 21, it’s a decision of the national assembly and I’m asking all federal parties to make sure, and to assure the population of Quebec, that they won’t participate in any suit against Bill 21. I want them to stay out of it forever – not only for the moment, but forever.”
With the law so popular in Quebec, especially among francophones – polls consistently show it has around 70 per cent support – and all federal parties vying for the province’s 78 seats, the leaders quickly came to heel.
Liberal Leader Justin Trudeau did say that he is “not going to close the door on intervening at a later date, because I think it would be irresponsible for a federal government to close the door to intervention, ever on a matter that does touch fundamental freedoms.”
Liberal candidate Anthony Housefather, the incumbent in the Montreal-area riding of Mount Royal, expanded on that slightly during a debate on Sept. 24. Trudeau has “left the door open for an intervention at the appellate level” by a government he would lead, he said.
Housefather, a lawyer who chaired the House of Commons justice and human rights committee, has been critical of the bill since its inception. At his campaign launch on Sept. 11, he said it was “unconscionable” to restrict a person’s employment prospects on the basis of their religious appearance.
Conservative Leader Andrew Scheer said a Tory government would not intervene in a court challenge, as has NDP Leader Jagmeet Singh.
With the NDP’s fortunes in Quebec sagging, Singh underscored that pledge on Tout le monde on parle, a popular Quebec talk show, on Sept. 22. Instead, Singh, who wears the Sikh turban, said he hopes that his respect for Quebec’s identity and love of the French language will persuade people that he shares their values, despite what he has on his head.
Similarly, Green Leader Elizabeth May said her government would not seek intervenor status.
Not surprisingly, Bloc Québécois Leader Yves-François Blanchet vowed to stymie any attempt by the federal government to interfere with the legislation.
People’s Party of Canada Leader Maxime Bernier, a Quebecer, said other federal leaders should butt out of the issue.
During the Oct. 2 French-language debate, Trudeau said he does not think a free society should “legitimize discrimination,” and that it is the federal government’s responsibility to protect minorities. He reiterated that, as prime minister, he would not rule out his government participating in a legal challenge at some point.
He was responding to Blanchet, who in a face-to-face exchange said he is concerned that Trudeau would, if re-elected, help fund a court case against the law, which he said is supported by the “vast majority” of Quebecers.
Singh also called the law discriminatory, but reiterated that, if he becomes prime minister, an NDP government would not get involved in any legal challenge.
The first legal challenge, by the Council of Canadian Muslims and the CCLU, did not get off to a good start. In July, a Quebec Superior Court judge denied their request for a suspension of certain provisions of the law until the case is heard. Their appeal is scheduled to be heard in November.
B’nai Brith Canada, which has called the law “reprehensible,” said it might seek intervenor status in this case if it goes to judicial review. On Sept. 25, the English Montreal School Board (EMSB) announced that it would also contest the law. The largest English school board in the province had been defiant at first, promising it would not apply the law to its employees.
But the government’s implicit threat of placing any non-compliant school board under trusteeship apparently persuaded the board’s commissioners to back down just before the school year began.
At this point, Rabbi Michael Whitman, the senior rabbi of Adath Israel Congregation, is probably the most vocal opponent of the law in the Jewish community. An American, Rabbi Whitman came to Quebec in 2001 to assume the post at the modern Orthodox synagogue. He is also a sessional lecturer on Talmudic law in McGill University’s law faculty.
He is active with the CIQ, which was one of 32 groups that had formal standing before the national assembly’s public hearings on the bill, which were held in May, and organized a number of peaceful protests.
Rabbi Whitman is now also involved in another grassroots drive to have the law repealed. At its campaign launch in September, Rabbi Whitman said the law was an “evil” that “must be fought with every legal and moral method available.”
Rabbi Whitman thinks the law is “an abuse of power.… The purpose of the charter is to protect minorities.… I’m disappointed in anyone who does not stand up for the rights of minorities.”
He is also worried about the deleterious effect the law is having on Quebec society. “Even if its actual application is limited, the law has unleashed incivility and harassment. The number of incidents against all minorities is up sharply,” he said.
For several years, he has engaged in dialogue with the Muslim community and his activism is motivated in part by a sense of solidarity with them, as they are most affected by the new law.
“I think it is important for Jews to come to the aid of other minorities when they are attacked, as we would like to see the same from them when we are attacked. It’s a Jewish value,” he said.
Jews should not be complacent about this law, he warned. “A member of our congregation just told me that when her daughter, a teacher, was transferred to another school, she was told not to wear her Jewish star,” he said.
There seems to be confusion about when to apply the law, he added, and even what types of symbols are prohibited. The anecdote about the teacher demonstrates to Rabbi Whitman that those charged with enforcing the law are erring on the side of unnecessary caution.
Rabbi Whitman does not think Quebecers who support the law are racist, but thinks it’s a consequence of them having little or no contact with religious minorities. “Instead of rewarding ignorance or fear of the other, the government should be encouraging people to share their faith and practices,” he suggested.
The organized Jewish community advocated against the bill. The Centre for Israel and Jewish Affairs (CIJA) was one of only two faith-based groups permitted to address the public hearings.
B’nai Brith submitted a brief, as did the Lord Reading Law Society, an organization of Jewish jurists that objected to the bill’s infringement on rights protected by both the Canadian and Quebec charters.
Hampstead Mayor Bill Steinberg’s deliberately provocative remark in April that the bill amounts to “ethnic cleansing, not with a gun, but with a law,” caused a firestorm. Although he does not represent the community, or claim to, that was not the way many media commentators saw it.
A sense of resignation seems to have set in since then – Bill 21 is not listed as an issue in CIJA or B’nai Brith’s election guides.
As Robert Libman, who founded the Equality Party over 30 years ago and ran as a Conservative in the 2015 federal election, said, Bill 21 has become “the new normal,” comparable in some ways to Bill 101, the Charter of the French Language.
There is a realization that the CAQ is more popular than it was following the election. The chances of it being re-elected three years from now are high, Libman said. Moreover, he doubts any future provincial Liberal government would scrap the law.
While Bordan may never find himself excluded from a government contract, he fervently hopes that the acceptance of his identity that he has enjoyed in his practice all these years stays the same.