Hearings on constitutionality of Quebec’s secularism law underway in Court of Appeal


Opponents of Quebec’s secularism law — often known as Bill 21 — argued earlier than the province’s Court of Appeal Monday that the CAQ authorities went too far in pre-emptively invoking the constitutional however clause in order to guard the law from courtroom challenges.

The Quebec authorities and a number of other civil liberties teams are presenting arguments about a Superior Court choice final yr, which upheld most — however not all — of the province’s controversial secularism law.

Enacted below the Coalition Avenir Québec (CAQ) authorities in June 2019, the secularism law prohibits public faculty academics, law enforcement officials, authorities legal professionals and a number of different civil servants — and even some politicians — from sporting spiritual symbols at work.

“A law that pursues a objective that is categorically illegitimate in a society of rights and freedoms shouldn’t be protected by however clause,”  Alexandra Belley-Mackinnon, lawyer for a gaggle referred to as Coalition Inclusion Québec advised the courtroom Monday.

As quickly because the law was handed, civil liberties teams, together with the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA), started submitting authorized challenges. In all, 17 totally different teams, some in help of the law and a few towards it, are represented on the hearings this week.

“Imagine having to inform your daughter that she will by no means be a choose as a result of of her look. Imagine telling your son that he can by no means be a trainer as a result of of his look,” Stephen Brown, the CEO of the NCCM, mentioned throughout a information convention Monday on the steps of the Montreal courthouse minutes earlier than arguments started.

“It’s untenable.”

Challenging a ruling from 2021

In April 2021, Superior Court Justice Marc-André Blanchard dominated that the law violates the fundamental rights of spiritual minorities in the province however is authorized as a result of of Section 33 of the Canadian Charter of Rights and Freedoms, also referred to as the Constitution’s however clause. 

The CAQ authorities pre-emptively invoked the however clause to defend its law from constitutional challenges. The clause permits provinces to exempt legal guidelines from sure sections of the constitution. Its software to legal guidelines is topic to renewal each 5 years. 

However, in his choice, Blanchard exempted English colleges from the spiritual symbols ban.

He additionally dominated that members of the province’s National Assembly are allowed to put on spiritual symbols that cowl their faces, reminiscent of a niqab, in accordance with the part of the constitution that ensures each citizen’s proper to vote and be a member of the legislature.

Not lengthy after the choice was handed down, Quebec Justice Minister Simon Jolin-Barrette, the architect of Bill 21, mentioned the province deliberate to attraction the 2 conclusions of the judgment concerning English colleges and legislators. 

The NCCM and CCLA then additionally filed an attraction, saying the law banning spiritual symbols in many public sector jobs is unconstitutional and ought to be struck down.

Constitutional lawyer Julius Grey on the steps of the Quebec Court of Appeal in Montreal. (Ivanoh Demers/Radio-Canada)

Notwithstanding clause in the highlight

The hearings, scheduled for 4 days this week, will have a look at totally different points of the law. First up Monday was the use of the however clause.

Lawyers for a number of teams against the law argued utilizing the however clause in a sweeping trend to stop courtroom challenges was going too far.

Theodore Goloff, lawyer for the Lord Reading Society, which represents Jewish jurists, advised the courtroom the however clause was not a “free move” to allow governments to droop rights with out debate.

“Bill 21 creates a regime that’s extralegal, that’s, not topic to the rule of law,” Goloff advised the panel of three judges.

“The bill creates an exception to the principle that nothing and nobody could be above the law.  It locations the state itself above the law,” he mentioned.

Julius Grey, representing the Canadian Human Rights Commission and the Quebec Community Groups Network, argued that utilizing the however clause in a sweeping means goes “towards the spirit” of the Canadian Charter of Rights and Freedoms.

Grey argued that the clause was designed for use in a “restricted, surgical and exact” trend.

Fréderic Bédard, lawyer for the academics’ union Fédération autonome de l’enseignement, argued that the CAQ had drafted the law for populist political causes and that it has did not exhibit an actual and pressing must droop individuals’s constitutional rights.

Isabelle Brunet, lawyer for the Attorney-General of Quebec, argued the however clause is nothing new and that the province was effectively inside its rights to invoke it.

Brunet mentioned the clause is a “safeguard of parliamentary independence” that offers the final phrase to legislators.

She mentioned the clause is an effective instance of how federalism is meant to work, permitting every province to protect its particular person id.

But the workplace of federal Justice Minister David Lametti issued an announcement Monday on his behalf which mentioned: “How a girl, or any particular person, expresses themselves and their spiritual beliefs in public and at work is a charter-protected proper.”

“I’m carefully following the problem to Bill 21 that’s at present earlier than the Quebec Court of Appeal, and have dedicated to intervening in the matter ought to it attain the Supreme Court of Canada.”

Opposing views

Throughout the hearings — which is able to final Monday by means of Thursday, after which resume on Nov. 16 — the Court of Appeal will hear from a number of events arguing to both abolish or beef up the law. 

Furheen Ahmed, a trainer at Westmount High School in Montreal, who wears a hijab, is hoping for the law to be struck down. 

“It’s absurd,” she mentioned. “There’s no proof of something destructive popping out of people in the classroom educating sporting a kippah, sporting a turban, sporting a hijab.”

More than two years after Bill 21 got here into impact, she mentioned she’s seen tales of people who’ve misplaced their jobs or who’ve chosen to pursue careers exterior of Quebec as a result of they’re unable to work in the general public sector and put on the religions symbols that matter to them. 

Ahmed mentioned the difficulty is individuals’s notion of faith, or sure religions, “and that notion is being thrown onto my freedom, my decisions. [It’s] not honest.”

On the opposite finish of the spectrum, a pro-secular group, the Mouvement laïque québécois (MLQ), will argue not solely that Bill 21 does not trample minority rights however that it does not go far sufficient in defending the rights of dad and mom to have their youngsters obtain a secular training. 

“The colleges will not be there to make sure the liberty of spiritual apply of the academics. The faculty is there to educate college students, to make sure their freedom of faith, to make sure the equality of all college students’ religions,” mentioned Daniel Baril, president of the MLQ, in an interview with CBC News. 

Baril mentioned his group would ideally need the spiritual symbols ban to use to all workers in colleges — not simply academics — in addition to in CEGEPs and early childcare centres. 

Laura Berger, a workers lawyer with the CCLA, mentioned her workforce will probably be discovering modern methods to skirt across the however clause to argue towards forcing individuals to “select between their religion and their careers.” 

She mentioned Quebec must strike a stability between the precise to a secular province and people’ rights. 

“We firmly consider that freedom of faith means pushing faith out of the state. It doesn’t suggest pushing individuals out of workplaces,” she mentioned. 

Berger mentioned the Appeal Court can take between six and 18 months to situation a ruling. 

It’s extensively anticipated the law will finally be challenged in the Supreme Court of Canada.


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