Court mostly upholds controversial Quebec secularism law, exempts English school boards

 MONTREAL -- Quebec's secularism law, Bill 21, has been upheld by the province's Superior Court, with two exceptions: it won't apply to English school boards in Quebec, or to members of the provincial legislature. 

That's because both those groups are protected, for different reasons, against the use of the notwithstanding clause that was invoked in 2019 to pass the bill, which bans teachers, police officers and other types of public servants from wearing religious symbols such as Muslim hijabs and Jewish kippahs.

In his 240-page ruling, Justice Marc-Andre Blanchard ruled that English school boards' minority rights trump that clause -- they may decide on their own whether to hire people who wear religious symbols.

Voters' right to freely elect their representatives also trumps the clause, he wrote, meaning their elected MNAs cannot be banned from the National Assembly for their religious symbols. He struck down a ban on face coverings for MNAs.

In a statement, the English Montreal School Board said it was "elated" by the decision.

"This legislation runs contrary to what we teach and to the culture of respect for individual rights and religious freedoms within English-language schools," said EMSB chair Joe Ortona.


However, the vast majority of Quebec's Muslim students have nothing to celebrate, said Fatima Ahmad, a 24-year-old teacher who is Muslim. Most Muslim children in Quebec are in the French-language system, she pointed out.

"Most Muslim students have to already go to French schools, because of Bill 101," she told CTV on Tuesday morning, shortly after the ruling was released.

"Therefore, you know, they have to be part of the French culture... they will feel like, because of their identity, they will be targeted. And most students will still be impacted," she said.

Ahmad wears a hijab herself. She graduated last year from McGill University's school of education and planned to take a job overseas -- she was not eligible for a job in Quebec at the time because of her hijab -- but amid the pandemic she ended up staying in Montreal, for now.

"I already teach a lot of students at my local mosque, and I see their reactions, and some of them... want to be teachers, judges, among other things, and you can see their reactions, like how is this in place?" she said.

"They're still pursuing their goals, but it puts a huge burden on them... they don't know what's going to happen."


Bill 21 prohibits public-sector workers who are deemed to be in positions of authority, also including public prosecutors and judges, from wearing symbols such as hijabs, kippas or turbans while at work.

The bill had the greatest effect on women teachers, however, Blanchard documented carefully in his ruling. It also affects the public at large, he wrote, after referring in detail to testimony from many people.

"There is no doubt that Law 21 has serious and negative consequences for all people who wear religious symbols in public," he wrote. 

For those who hold a job covered by the law, there's an extra dilemma, he wrote: "Either they act according to their soul and conscience, in this case their beliefs, or they work in the profession of their choice. It is easy to understand that this is a cruel consequence that dehumanizes the people targeted."

The legal challenge was an enormous one, logistically speaking, that wrapped together four separate challenges, each with its own plaintiffs and intervenors, including the Canadian Civil Liberties Association, the National Council of Canadian Muslims, the EMSB, a teachers' union and many others.

However, Blanchard's job in the end was not to determine whether Bill 21 is constitutional overall.

That's because, to pass the bill in June 2019, the Legault government made use of the Charter of Rights and Freedoms’ notwithstanding clause, which is sometimes known as the "override clause," or, even more colloquially, the "nuclear clause," because of how drastic it is.

It's a special, rarely used option built into the Canadian legal system specifically to allow provinces to bypass Charter rights, at least temporarily -- laws passed with its use must be reviewed every five years.

But use of the notwithstanding clause shields legislation from most court challenges over violations of fundamental Canadian rights.

This means Justice Blanchard, rather than determining if Bill 21 broke any Charter rights in general, instead made the starting assumption that it did, said Montreal lawyer Stephane Beaulac, who is counsel at Dentons law firm and teaches at the Université de Montreal's law school.

"He did what [judges] often do" in such cases, assuming there were such violations of Canadian freedoms -- freedom of religion, for example -- without deciding in his final analysis, said Beaulac.

Instead, he set about determining if there were special exceptions to the clause's sweeping power, as the plaintiffs had argued, wanting to get around the clause.

While Beaulac had more general criticism of the use of the notwithstanding clause, he noted it isn't within his jurisidiction to find legal fault with it.

"The use by the legislator of exemption clauses appears excessive, because [of being] too broad, although legally unassailable in the current state of the law," he wrote.


However, minority rights and voters' democratic rights do have explicit protection, he wrote. This applies very clearly only to English-language Quebec schools and not to French ones -- just as in Ontario, if a similar situation unfolded, it would apply only to French-language boards that form the minority in that province.

"They basically said that deciding on whether or not teachers in the English education system can or cannot wear a religious sign is something that is the prerogative, is under the power of English school board," Beaulac said.

"There's asymmetrical protection, meaning that there's protection for English school boards because of minority rights that simply cannot apply to French school boards."

And when it comes to elected provincial leaders, the ban on face coverings also could not stand, Blanchard ruled, since voters' rights are also sacrosanct under the constitution.

"You cannot have restrictions on how an [elected representative] can be a candidate, and can vote, and can be at the legislature, in the National Assembly," Beaulac said.

"If they want to wear a religious sign, no one can prevent them."

It's widely expected the case will head to higher courts for appeals, and Beaulac said the meticulous ruling laid an excellent groundwork for that in its detailed explanation of its reasoning and its fact-finding carefully laid out about the effect of the bill so far.

The court released its ruling on the legislation Tuesday morning. Arguments concluded in December 2020.

--With files from The Canadian Press

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