How lawyers are trying to overturn Quebec's religious symbols ban

This story was originally published in 2019 but offers an in-depth look at the arguments put forward against Bill 21. On Tuesday, April 20, 2021, Quebec Superior Court upheld most of the law, but made an exception for English school boards.

The Quebec government has won the latest round in its fight to uphold its contentious religious symbols legislation, passed earlier this year.

In a 2-1 decision released Thursday afternoon, the Quebec Court of Appeal rejected a request to suspend some sections of the Laicity Act, pending a ruling on the law's constitutionality.

The law, widely referred to as Bill 21, bars public school teachers, police officers and government lawyers, among other civil servants, from wearing religious symbols — like hijabs or turbans — while at work.

Thursday's ruling is unlikely to end the legal challenges facing Bill 21. The Appeals Court has only ruled on a request for a temporary stay while Quebec Superior Court takes time to consider the constitutionality of the law itself.

The injunction request came from one of four different challenges that have been filed against Bill 21 since it was passed in June.

The cases all make different arguments about why the law violates the Constitution and should be struck down. 

But each must confront the notwithstanding clause that Premier François Legault's government inserted into the legislation.

The clause means these groups can't appeal to large sections of the Canadian and Quebec charters of rights to argue Bill 21 is unconstitutional.

In the Canadian charter, these are sections covering fundamental freedoms, legal rights and equality rights.

Here's an overview of the arguments lawyers will be using to try to get around the notwithstanding clause. 

Civil rights groups vs. Quebec

Only hours after Bill 21 became law, the National Council of Canadian Muslims and the Canadian Civil Liberties Association filed the first application to challenge its constitutionality in court.

The civil rights groups use three main arguments to get around the notwithstanding clause. Two of them involve claims that Quebec has overstepped its jurisdiction.

Previous Supreme Court decisions have suggested only Ottawa can regulate religious observance for a moral purpose. The groups say the same principle should apply to a law that attempts to regulate religious non-observance.

Their application also claims that Bill 21 limits the ability of minorities to access public institutions, which alters unwritten principles of the Canadian Constitution. And Quebec cannot, on its own, alter the Constitution.

Their third argument targets the law's definition of "religious symbols." They contend it is so vague that it will be applied differently in each instance.

A law that can't be applied to everyone in the same way, it's argued, is unconstitutional.

Coalition Inclusion Québec vs. Quebec

This challenge was filed in September on behalf of three teachers who wear religious symbols as well as the multi-faith group Coalition Inclusion Québec.

Of the challenges to Bill 21 currently before the courts, it contains the widest range of constitutional arguments.

Its principal claim is that the law is incoherent. By barring religious symbols from certain parts of the civil service but not others, the law violates its own definition of secularism, which stipulates that it include respect for equality, freedom of religion and state neutrality.

Such a contradiction, the motion argues, violates the constitutional principle of the rule of law.

The second argument in this case involves freedom of religion, but not the freedom of religion that is included in Section 2 of the Canadian charter. That part of the charter is overridden by the notwithstanding clause in Bill 21. 

Instead, Coalition Inclusion Québec invokes the freedom of religion principle enshrined in the Quebec Act of 1774. 

The act, which allowed French Canadians to practise Catholicism in the British colony, was incorporated in the Constitution, and so still holds sway.

Third, this challenge also claims Quebec has exceeded its jurisdiction in passing Bill 21. It points out that nowhere in the division of powers listed in the 1867 Constitution is it mentioned that a province can legislate a state preference for "non-religion."

Finally, the challenge argues Bill 21 violates Section 28 of Canadian charter, one of the sections not covered by the notwithstanding clause.

Section 28 says charter rights must apply equally to men and women. 

According to Coalition Inclusion Québec, Bill 21 violates the religious freedom and freedom of expression of Muslim women, which is unconstitutional under Section 28.

English Montreal School Board (EMSB) vs. Quebec

This challenge only targets certain parts of the law: those that apply to public school teachers.

More particularly, it argues Bill 21 interferes with the management of Quebec's English-language school boards.

The EMSB is arguing that by preventing school boards from hiring teachers who wear religious symbols, the law is hindering the vitality of the English-speaking community.

That is unconstitutional, the school board says, by virtue of Section 23 of the charter, which protects minority language education rights and is not covered by the notwithstanding clause either. 

Like Coalition Inclusion Québec, the EMSB is also trying to make use of the charter's Section 28.

The school board says Bill 21 "disproportionately affects women, female Muslim teachers who wear the hijab," and therefore the sections that apply to public school teachers should be declared unconstitutional.

Teachers union vs. Quebec

This is the latest challenge to be filed. Of the four, it tackles the notwithstanding clause issue in Bill  21 most directly.

Lawyers for the Fédération autonome de l'enseignement, a union that represents 45,000 Quebec teachers, want the court to review the rules that guide how a government can invoke the controversial clause.

The rules should take into account what rights are being overridden, and not simply deal with the procedure required to invoke the clause, the union's application says.

It says the notwithstanding clause shouldn't be used to flout commitments to international conventions, such as the United Nations' International Covenant on Civil and Political Rights, which Canada joined in 1976.

If the union can convince the court that the notwithstanding clause in Bill 21 is improper, it would clear the way for a number of other arguments.

Lawyers for the union intend to show the law has caused open displays of discrimination against Muslim teachers who wear the hijab.

This, they say, is a violation of the teachers' freedom of religion (Section 2 of the Canadian charter) and their equality rights (Section 15).

The union also claims Bill 21 imposes changes on duly signed collective agreements by nullifying clauses that prohibit school authorities from engaging in religious discrimination. 

It argues that constitutes a violation of freedom of association, Section 2(d) of the charter, which is considered the source of collective bargaining rights in Canada.

What's next?

The first three challenges mentioned above will be heard together in Quebec Superior Court, alongside any other parties who are granted intervenor status. These could include groups who support Bill 21 and want to see it upheld. 

Grouping the cases together will speed up a decision. A judge will deliver one ruling on all the different arguments that are raised at trial.

No date has been set for the trial.