A Quebec Superior Court judge has upheld most of the province’s law banning religious dress in some public-service functions but carved out an exception for the anglophone education system, to the dismay of Premier François Legault and other Quebec nationalists.
Justice Marc-André Blanchard ruled Tuesday that Quebec’s “Act respecting the laicity of the State,” better known as Bill 21, infringes fundamental rights to religious expression under the Canadian Charter of Rights and Freedoms, and its Quebec equivalent. He found Bill 21 has “cruel and dehumanizing” effects on the targeted people.
But, he found, the Quebec government’s use of a blanket constitutional override power under Section 33 of the Constitution, known as the notwithstanding clause, prevents him from striking down most of the law.
The judge found an exception for anglophone school boards, which are protected under the Constitution’s minority language rights from having the override applied to them. The judge ruled language rights include cultural issues such as allowing religious expression among school staff.
The ruling cements Quebec’s debate over religious rights into a schism posing proponents of the Canadian model of multiculturalism, including many anglophones, against some Quebec nationalists, mostly francophone, who want to impose a more unitary vision of Quebec culture.
Justice Blanchard also overturned religious dress restrictions on members of the National Assembly who have a Constitutional right to run for election and sit in the legislature without such constraints.
The practical result of Tuesday’s ruling is Quebec’s English-language schools can hire teachers who wear Muslim veils or Jewish kippas, while the rest of Quebec’s school system cannot. Religious symbols will continue to be banned for police officers, judges, government lawyers and others the government has defined as people in positions of authority.
“I am elated and I’m proud of the English Montreal School Board,” said Furheen Ahmed, a high-school teacher who wears a headscarf, and works for the board that was a plaintiff in the case. “But it’s one small victory in a really big province.
“My French counterparts don’t get to celebrate today. And all the other people outside English schools don’t get to celebrate.”
Mr. Legault’s government has already said it will appeal the decision while most plaintiffs and advocacy groups who brought the challenge have strongly hinted they will do likewise. Many legal experts believe a showdown in the Supreme Court of Canada is inevitable.
Justice Blanchard found Mr. Legault’s legislation, passed nearly two years ago with the stated aim of promoting secular values in government institutions, has had serious negative consequences for Quebeckers who wear religious symbols, particularly Muslim women. “Law 21 steps more than minimally on the freedom to show or to practise religious beliefs,” the judge wrote. “This use of the prerogative seems to be imprudent and casual, and its sweep is far too large.”
But, the judge added, while the use of the constitutional exemption to shield the law from challenge appears to be excessive, it does not “violate the architecture of the Canadian Constitution nor primacy of the rule of law.”
The English Montreal School Board was about the only participant in the case declaring victory. While most of the law was upheld, Mr. Legault said he was disappointed and did not understand the judgment.
“I find it illogical. It’s like laïcité and those values are applied differently for anglophones and francophones,” Mr. Legault said. “Quebec and all Quebeckers should live with common values.”
Justice Minister Simon Jolin-Barrette, the architect of the law, accused the judge of dividing Quebeckers. “Quebec is a nation. Some are trying to divide us but we are united,” Mr. Jolin-Barrette said.
Quebec’s law imposes state religious neutrality and includes a dress code prohibiting civil servants holding “positions of authority” from wearing visible religious articles. The jobs under the dress code include teachers, police officers and government lawyers, among others.
People in those jobs who wear the symbols and already hold those posts are allowed to keep working. They cannot be promoted or transferred and new hires must remove the religious symbol to work.
Carissima Mathen, a constitutional law professor at the University of Ottawa, said the ruling sets up an examination of just how far use of the notwithstanding clause can go at the Quebec Court of Appeal and likely the Supreme Court of Canada.
“It’s the first time in maybe 20 years or more that we will have this kind of detailed consideration of Section 33,” Dr. Mathen said. “Lower courts may feel constrained by existing case law. It’s a question more for the appellate court and the Supreme Court of Canada to weigh in and decide if they want to chart a new path or new approach to Section 33.”
Dr. Mathen said while scholars debate how widely the clause should be used, the issue hasn’t gone before the courts because Quebec’s broad use of it is “such a rare choice.”
Advocates for Jewish, Muslim and Sikh organizations who backed the court challenge all expressed disappointment and vowed to keep fighting.
“It came out very clearly there are fundamental problems with Bill 21,” said Yusuf Faqiri, director of Quebec issues with the National Council of Canadian Muslims.
“It’s not constitutional, it’s discriminatory. It has been 674 days that Quebeckers who wear religious symbols are second-class citizens. We will review it in the next couple of days and decide on next steps but one thing is clear. This battle is far from over.”
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