It was a pivotal moment on Tuesday for the Quebec government, which tried to convince the Court of Appeal to overturn the portion of the judgment on “Bill 21” which had torn its biggest piece: the English school boards had been exempted, and their teachers could continue to wear religious symbols.
The State Secularism Act — commonly known as Bill 21 —was passed in controversy in 2019 and almost immediately challenged in court.
This piece of legislation prohibits the wearing of religious symbols by certain state employees when in the performance of their duties, such as elementary and secondary school teachers to the public, police officers, judges and Crown prosecutors .
After hearing a host of demands for the invalidation of the LawJudge Marc-André Blanchard of the Superior Court had largely upheld it in 2021, with two notable exceptions, including this one: he had ruled that English school boards were not subject to it, which made so that their staff and teachers could continue to wear yarmulkes, turbans or hijabs.
Quebec did not tolerate its law being amputated in this way and asked the Court of Appeal to restore the ban on wearing religious symbols for them as well.
The English Montreal School Board (EMSB) led this fight. She successfully invoked section 23 of the Canadian Charter of Rights and Freedoms to be exempted from the application of the law. This provision protects the right to instruction in the language of the minority — anglophone in Quebec and francophone elsewhere in Canada.
Over time, this section has been interpreted to include “a power of management and control” for school boards. The EMSB had argued before the Superior Court that this included the right to establish staff hiring and promotion policies and that the minorities covered by section 23 must be able to enjoy “control over those aspects of education which concern or which affects their language and culture”.
On Tuesday, the Attorney General of Quebec argued that “Bill 21” has nothing to do with language.
Article 23 does not allow linguistic minorities to shelter themselves from provincial laws for elements that are not intrinsically linked to the language or the level of linguistic services in their region, hammered Mr.e Manuel Klein.
This provision of the Charter does not speak of values or of belonging to a cultural community: it only targets the language, and nothing else is protected there, he continued.
He was reacting to the words of Judge Blanchard who wrote in his decision that cultural diversity was particularly important for Anglophones:
“Without denying or diminishing the fact that recognition of cultural and religious diversity exists and is valued in the French-language public education system, the Tribunal must find that the uncontradicted evidence allows it to conclude that the English-language school boards and their teachers Directors attach particular importance to the recognition and celebration of ethnic and religious diversity. »
The magistrate quoted a decision of the Supreme Court of Canada which underlined, according to him, that education “must be particularly suited to the linguistic and cultural identity of the minority”, and specified that religion participates in the cultural identity of a community.
But “Law 21” does not prevent valuing cultural diversity, and there are many other ways to do so, added Ms.e Klein on behalf of the Attorney General of Quebec. Quebec maintains that “Bill 21” does not violate section 23 of the Charter.
The Mouvement laïque québécois, which wants the State Secularism Act be fully maintained, added that it is not the rights of teachers that are protected by Article 23, but those of pupils.
The debate is not over: Wednesday morning, the EMSB will have its turn at the lectern to try to preserve the rights acquired by the Blanchard judgment.