Three female teachers including two Muslims and one Roman Catholic have launched another lawsuit against Quebec’s restrictions on religious symbols in some public service jobs, saying the province can’t use the notwithstanding clause to shield the law from its own incoherence.
A team of four lawyers backed by several Quebec community groups filed the lawsuit Thursday in Quebec Superior Court arguing the law strays into federal jurisdiction and infringes fundamental principles of equality, some of which predate Confederation or cannot be evaded through the notwithstanding clause.
“The government is laying down a framework where discrimination is not only routine but mandated, and then tries to wrap it up in a veneer of equality rights and freedom of religion,” said Eric Mendelsohn, one of the lawyers representing the plaintiffs. “That is not only offensive, it’s unconstitutional. You can’t do that in Canada.”
Earlier this year, Quebec passed Bill 21, a law that declares Quebec a secular state and forbids some public servants including police officers, prosecutors and public-school teachers from wearing religious symbols. The law, widely decried as unconstitutional by legal scholars, was passed invoking the notwithstanding clause to shield it from court challenge based on religious freedom. Another group launched the first challenge of the law in June, one day after the Quebec National Assembly passed it.
The law includes a grandfather clause to protect current teachers from getting fired, but school boards, unions, lawyers and court documents have since described more than a dozen cases where women, mostly Muslim, have had job prospects derailed or religious practices curtailed. School boards have asked some potential new teachers to remove headscarves and rejected other applicants with religious garments. Several women have turned down jobs while in four reported cases women acquiesced and removed garments. Most have chosen to stay out of the public eye.
Andréa Lauzon, the first plaintiff named in the case filed Thursday, says she is a devout Roman Catholic who wears a visible crucifix and a medallion of the Virgin Mary at all times to conform to her religious values. She says the law blocks her from being a substitute teacher while she completes her master’s degree in education.
Hakima Dadouche and Bouchera Chelbi, both Muslims who wear hijab head coverings, are full-time teachers who want to change jobs, but are not allowed to accept transfers, promotions or new positions under the law. All three women are certified Quebec teachers. They all declined interview requests. A judge allowed them to omit their addresses from court fillings Thursday to protect them from harassment and reprisal.
The Quebec government, which has not responded to the suit, has defended the law saying it enshrines secularist principles and is a compromise that acts on a popular desire for limits on religious expression in Quebec’s public services.
The statement of claim argues the law should fall because it invokes principles such as religious freedom, equality and the importance of lay institutions that do not discriminate based on religion, but then demands public servants enforce an anti-religious dress code. “To enforce a dress code or discipline an employee for failing to enforce it cannot be done without breaching the law’s own stated principles,” Mr. Mendelsohn said. “What’s going on here is they are misleading people as to the character of this project.”
The lawsuit also argues the law infringes on guarantees against gender discrimination. Eighty-eight per cent of preschool and primary teachers in Quebec are women, along with 61 per cent of high-school teachers. François Legault’s government often argues the law treats everyone equally because it does not specify any gender or religion. “The cases coming forward are almost all Muslim women who wear a hijab. Both in purpose and in effect, the law has a disproportionate effect on women’s rights to exercise freedom of religion,” said Perri Ravon, the lawyer who prepared the gender-discrimination argument.
She said avoiding the words “Muslim” or “woman” in the law did not make it egalitarian. “It doesn’t matter if it’s neutral on its face. It’s discriminatory in practice,” Ms. Ravon said.
The lawsuit also says the 1982 Constitution Act and Charter of Rights and Freedoms did not cancel the religious freedom guarantees for Canada’s Roman Catholic settlers enshrined in the Quebec Act of 1774. Another law in the 1800s confirmed religious freedom for Jews and another law later extended the right to everyone, said Azim Hussain, a lawyer for the plaintiffs. “That is a constitutional norm that exists to this day in the Constitution of Canada,” Mr. Hussain said.
Besides, he added, fundamental freedoms like religious expression fall under federal power and are out of reach of the provinces.
If the main arguments fail, the lawsuit asks the court to declare the law a violation of religious freedom and impose symbolic damages of $500 for each plaintiff, even if a judge cannot strike down the law. Such a declaration would force Quebec governments to renew the notwithstanding clause every five years to keep the dress code in place.
“Having an impartial court tell the public there are serious breaches of the Constitution and bad discrimination going on is a valuable exercise in a free and democratic society," Mr. Mendelsohn said. “And we hope it might move people.”
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