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

Opponents of Quebec's secularism law — known as Bill 21 — argued before the province's Court of Appeal Monday that the CAQ government went too far in pre-emptively invoking the constitutional notwithstanding clause in order to protect the law from court challenges.

The Quebec government and several civil liberties groups are presenting arguments about a Superior Court decision last year, which upheld most — but not all — of the province's controversial secularism law.

Enacted under the Coalition Avenir Québec (CAQ) government in June 2019, the secularism law prohibits public school teachers, police officers, government lawyers and a host of other civil servants — and even some politicians — from wearing religious symbols at work.

"A law that pursues a goal that's categorically illegitimate in a society of rights and freedoms should not be protected by notwithstanding clause,"  Alexandra Belley-Mackinnon, lawyer for a group called Coalition Inclusion Québec told the court Monday.

As soon as the law was passed, civil liberties groups, including the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA), began filing legal challenges. In all, 17 different groups, some in support of the law and some against it, are represented at the hearings this week.

"Imagine having to tell your daughter that she can never be a judge because of her appearance. Imagine telling your son that he can never be a teacher because of his appearance," Stephen Brown, the CEO of the NCCM, said during a news conference Monday on the steps of the Montreal courthouse minutes before arguments began.

"It's untenable."

Challenging a ruling from 2021

In April 2021, Superior Court Justice Marc-André Blanchard ruled that the law violates the basic rights of religious minorities in the province but is legal because of Section 33 of the Canadian Charter of Rights and Freedoms, also known as the Constitution's notwithstanding clause. 

The CAQ government pre-emptively invoked the notwithstanding clause to shield its law from constitutional challenges. The clause allows provinces to exempt laws from certain sections of the charter. Its application to laws is subject to renewal every five years. 

However, in his decision, Blanchard exempted English schools from the religious symbols ban.

He also ruled that members of the province's National Assembly are allowed to wear religious symbols that cover their faces, such as a niqab, in accordance with the section of the charter that guarantees every citizen's right to vote and be a member of the legislature.

Not long after the decision was handed down, Quebec Justice Minister Simon Jolin-Barrette, the architect of Bill 21, said the province planned to appeal the two conclusions of the judgment regarding English schools and legislators. 

The NCCM and CCLA then also filed an appeal, saying the law banning religious symbols in many public sector jobs is unconstitutional and should be struck down.

Notwithstanding clause in the spotlight

The hearings, scheduled for four days this week, will look at different aspects of the law. First up Monday was the use of the notwithstanding clause.

Lawyers for several groups opposed to the law argued using the notwithstanding clause in a sweeping fashion to prevent court challenges was going too far.

Theodore Goloff, lawyer for the Lord Reading Society, which represents Jewish jurists, told the court the notwithstanding clause was not a "free pass" to permit governments to suspend rights without debate.

"Bill 21 creates a regime that is extralegal, that is, not subject to the rule of law," Goloff told the panel of three judges.

"The bill creates an exception to the principle that nothing and no one can be above the law.  It places the state itself above the law," he said.

Julius Grey, representing the Canadian Human Rights Commission and the Quebec Community Groups Network, argued that using the notwithstanding clause in a sweeping way goes "against the spirit" of the Canadian Charter of Rights and Freedoms.

Grey argued that the clause was designed to be used in a "limited, surgical and precise" fashion.

Fréderic Bédard, lawyer for the teachers' union Fédération autonome de l'enseignement, argued that the CAQ had drafted the law for populist political reasons and that it has failed to demonstrate a real and urgent need to suspend people's constitutional rights.

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

Brunet said the clause is a "safeguard of parliamentary independence" that gives the last word to legislators.

She said the clause is a good example of how federalism is supposed to work, allowing each province to preserve its individual identity.

But the office of federal Justice Minister David Lametti issued a statement Monday on his behalf which said: "How a woman, or any person, expresses themselves and their religious beliefs in public and at work is a charter-protected right."

"I am closely following the challenge to Bill 21 that is currently before the Quebec Court of Appeal, and have committed to intervening in the matter should it reach the Supreme Court of Canada."

Opposing views

Throughout the hearings — which will last Monday through Thursday, and then resume on Nov. 16 — the Court of Appeal will hear from several parties arguing to either abolish or beef up the law. 

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

"It's absurd," she said. "There's no evidence of anything negative coming out of individuals in the classroom teaching wearing a kippah, wearing a turban, wearing a hijab."

More than two years after Bill 21 came into effect, she said she's seen stories of individuals who have lost their jobs or who have chosen to pursue careers outside of Quebec because they are unable to work in the public sector and wear the religions symbols that matter to them. 

Ahmed said the issue is people's perception of religion, or certain religions, "and that perception is being thrown onto my freedom, my choices. [It's] not fair."

On the other end of the spectrum, a pro-secular group, the Mouvement laïque québécois (MLQ), will argue not only that Bill 21 doesn't trample minority rights but that it doesn't go far enough in protecting the rights of parents to have their children receive a secular education. 

"The schools are not there to ensure the freedom of religious practice of the teachers. The school is there to educate students, to ensure their freedom of religion, to ensure the equality of all students' religions," said Daniel Baril, president of the MLQ, in an interview with CBC News. 

Baril said his group would ideally want the religious symbols ban to apply to all staff in schools — not just teachers — as well as in CEGEPs and early childcare centres. 

Laura Berger, a staff lawyer with the CCLA, said her team will be finding innovative ways to skirt around the notwithstanding clause to argue against forcing people to "choose between their faith and their careers." 

She said Quebec needs to strike a balance between the right to a secular province and individuals' rights. 

"We firmly believe that freedom of religion means pushing religion out of the state. It doesn't mean pushing people out of workplaces," she said. 

Berger said the Appeal Court can take between six and 18 months to issue a ruling. 

It's widely expected the law will eventually be challenged in the Supreme Court of Canada.