Almost no one being really satisfied with the judgment rendered last year on the Law on the secularism of the State, many of them will be pleading before the Court of Appeal in the next two weeks to convince its judges to reverse it.
The highest court in Quebec will hear eight different appeals over ten days: an exceptionally long hearing, reflecting the high number of protesters and the importance of the case for society.
For some, the decision of Judge Marc-André Blanchard of the Superior Court goes too far and, for others, it is too timid.
After days of constitutional debates in his courtroom, the magistrate largely upheld the law in his April 2021 decision, except for English school boards and elected officials of the National Assembly. He thus declared inoperative certain sections of the legislative measure.
This — formerly known as “Bill 21” — was controversially passed in June 2019 by the National Assembly. It prohibits the wearing of religious symbols by certain government employees while performing their duties, such as elementary and secondary school teachers to the public, police officers, judges and Crown prosecutors.
Judge Blanchard’s river decision — a total of 240 pages — illustrated the delicate balance between the rights of various groups in society.
In particular, it was argued before him that this law causes serious harm to religious minorities and to the rights of Muslim women, who would be particularly targeted and affected by the law.
The Canadian Charter of Rights and Freedoms was thus analyzed from every angle: to avoid legal challenges, the CAQ government had inserted the famous derogation provision (“derogation clause”) into its law to shield it from attacks based on the Charter of Rights and Freedoms. rights and freedoms, including those claiming to be discriminatory.
Dusting off the Canadian Constitution
This prompted the protesters to dust off the Canadian Constitution to find a host of other arguments to attack the Act — in order to prevent the notwithstanding clause from defeating their recourse.
The magistrate rejected most of the arguments, such as the one who argued that such a law falls within the legislative jurisdiction of Ottawa and not of Quebec, or that the prohibition for judges to wear a religious symbol undermined judicial independence.
On the other hand, it accepted that of the English Montreal School Board (EMSB), subsequently exempting English school boards from the application of this law. He considers that some of its passages flout section 23 of the Charter, which protects minority language education, a right that has been interpreted over the years to include those to establish hiring policies, retention and promotion of staff.
The Attorney General of Quebec had defended his legislative measure, hammering that the Act respecting the secularism of the State frames freedom of religion, but does not deny it. Moreover, his lawyers had pleaded that this freedom of religion is never absolute, whatever the context. According to them, the prohibition of religious signs at school is a prohibition in a specific sphere, which does not prevent citizens from practicing their religion outside of work.
In this litigation, the Quebec government had also had the support of allies, who presented arguments for the law to be preserved in its entirety, including the organization Pour les droits des femmes du Québec and the Mouvement laïque québécois, which highlighted in argument the right of Quebec parents to ensure the religious and moral education of their children in accordance with their convictions. Opponents included the World Sikh Organization of Canada, the National Council of Canadian Muslims, and the Independent Teachers’ Federation, among others.
The Minister of Justice, Simon Jolin-Barrette, quickly denounced Judge Blanchard’s decision: it creates “two Quebecs”, he said, while “the laws must apply uniformly” everywhere. He appealed the decision on appeal on behalf of the government.
The EMSB emerged victorious from its fight, except that the appeal from Quebec prevented the judgment from taking effect. The EMSB therefore still unable to hire whoever it wanted, it asked the Court of Appeal to be exempted from the application of the Act respecting the secularism of the State until a decision is rendered. about the Quebec appeal. The Court refused him last November.