(Montreal) Prosecutors for the Legault government attacked, Thursday in the Court of Appeal, the portion of the trial judgment which invalidated the ban on sitting with a covered face in the National Assembly contained in Law 21 on the secularism.
Posted at 6:36 p.m.
Judge Marc-André Blanchard considered in his decision that this ban violated the right guaranteed by the Canadian Charter to stand in a federal or provincial election. The magistrate had based his reasoning on the fact that this right escapes the notwithstanding provision used by the government to suspend freedom of religion in order to prohibit the wearing of religious symbols by certain people in positions of authority.
Factual vacuum
Speaking on behalf of the Attorney General of Quebec, Mr.e Isabelle Brunet first criticized Judge Blanchard for having pronounced “theoretically” since no evidence had been presented to her showing that a person could not have run for the votes with a covered face. “A constitutional question should not be decided in a factual vacuum,” she argued.
But above all, she continued, “Law 21 does not prevent anyone with a covered face from running and being elected”. It is when sitting that she will have to uncover her face.
Beyond the uncovered face, “a deputy is not prevented from wearing his religious sign” in the House unless he is appointed president or vice-president or minister of justice, “which represents a privilege and not a right “, she argued.
It is up to Parliament to decide
Speaking behind her, M.e Christian Trépanier came to speak on behalf of the former President of the National Assembly, François Paradis, to recall that the Supreme Court has already ruled on the existence of “exclusive and absolute jurisdiction of Parliament over certain activities including the control exercised by the Chambers over the work or debates of Parliament.
“It is for Parliament and not the courts to determine whether the exercise of this privilege to impose the removal of a face covering or the wearing of a religious symbol for the president or the vice-president. In a case like this, he argued, “Parliament is the judge of the appropriateness of the terms of its exercise which escapes all judicial control”, an assertion which raised several questions from the three judges on the bench of the Court of Appeal.
The right to stand implies the right to sit
Unlike the Attorney General, Mr.e Olga Redko, representing in particular the plaintiff Ichrak Nourel Hak and the National Council of Canadian Muslims, came to give the reply, agreeing with Judge Blanchard.
“For us, the right to stand for election guaranteed by Article 3 protects not only the right to stand as a candidate, but also the right to sit and do the work of an MP once elected. »
“The right to be eligible necessarily includes the right to exercise the functions of deputy once elected because otherwise, being eligible is of little use”, she insisted.
“For the witnesses who testified, both those who wear a niqab and those who wear a religious symbol more generally, religious practices are not behaviors that they can easily change because these practices are part of their religious identity and their personal identity,” she argued in court.
For his part, M.e Theodore Goloff of the Lord Reading Law Association argued that “by excluding those who are required to wear religious symbols […] if they were to stand for election against those who are not required to wear religious objects, there would be an indirect visible benefit for one candidate vis-à-vis another. Our position is that this undermines the integrity of a free and fair election. »
A federal jurisdiction
Earlier in the day, the parties had notably debated the division of powers between the federal and the provincial, the objective of the opponents being to demonstrate that the Government of Quebec had legislated outside its jurisdiction by adopting its Law on secularism. Under this theme, M.e Redko had attempted to demonstrate that “the preamble [de la loi 21] situates secularism as a fundamental value of Quebec society. The objective of the law is therefore to protect a social value. »
“For this government, religious practice threatens secularism, threatens a fundamental value of society,” she said, pointing out that, according to certain interpretations of the law, this classified this legislation in the field of morality and, therefore, criminal law, which comes under the federal government.
Attacking the same question from another angle, Mr.e Molly Krishtalka, representing three teachers and the Coalition inclusion Québec, also explained that the federal government certainly had a say in the case of legislation affecting religion, citing in support of this assertion that the deconfessionalization of schools by Quebec had had to be made with the consent of the federal government.
A provincial jurisdiction
In response, the government prosecutor, Mr.e Francis Demers, dismissed these claims out of hand, criticizing his colleagues for analyzing only two articles, one of which relates to the prohibition of religious symbols (article 6) and the obligation to provide a service face uncovered (article 8) of law 21 which has nearly thirty. “We evade the overall objective of the law, which is to affirm the secularism of the State. The goal is to redefine the relationship between the state and religion in the legal, legislative and public service spheres,” he said.
Bill 21 “simply requires a stricter duty for certain people in the performance of their duties in the machinery of government”, he argued.
As for giving the law on secularism a criminal character, Ms.e Demers pointed out that the sanctions provided for in section 13 of the law are not criminal sanctions at all. In any case, “the federal Parliament does not have exclusive jurisdiction over elements of criminal law”, added the litigant, recalling for example that the Highway Safety Code, which falls under Quebec, includes sanctions that are of a criminal.