The Court of Appeal validates Law 21 on state secularism

The Quebec Court of Appeal confirms the validity of Law 21 on state secularism and the wearing of religious symbols. The judgment ruled in favor of the Legault government and notably inflicted a defeat on the English-Montreal school board. The federal government reiterates that if the case is taken to the Supreme Court of Canada, it will intervene.

This 300-page judgment, highly anticipated and delivered Thursday afternoon, goes further than the Superior Court’s decision of April 2021 and undermines the exceptional regime that it had decreed for English-speaking school boards.

Read “Constitutionality of Bill 21: five things to remember”

The secularism desired by the law “essentially reflects the current state of law which, in Quebec as elsewhere in the rest of the country, is based on a separation of the State and religions: because in fact, the constituent elements of the Canadian state are secular,” write judges Manon Savard, Yves-Marie Morrissette and Marie-France Bich.

They also point out that “although the bill was controversial in various aspects, reading the debates confirms one thing. No one claimed at any time that the project was intended to punish, penalize or stigmatize people whose religious beliefs would be constrained by the State’s assertion of secularism. […] »

According to the decision of the Court of Appeal, state employees – judges, police officers, Crown prosecutors, school principals and teachers, in particular – “must comply with the constraints imposed on them by the neutrality and secularism of the State. We are a long way here from criminal law and other areas of jurisdiction of the federal Parliament.”

The English Montreal School Board has already immediately raised the possibility of going to the Supreme Court.

And it is not impossible that the victory in the Court of Appeal of the Legault government and the supporters of secularism is “ephemeral”, according to constitutionalist Daniel Turp. He notes that “the majority of Supreme Court judges were appointed by Justin Trudeau” who has multiculturalism at heart.

No exemption for English school boards

In April 2021, Magistrate Marc-André Blanchard, of the Superior Court, had already judged the law to be largely valid, but he had created an exceptional regime to exclude English-speaking school boards from its scope of application.

Dissatisfied with this exemption, the Legault government took the matter to the Court of Appeal. He found it unacceptable that the Superior Court’s decision created two distinct school regimes: one for English-speaking schools (where teachers will be able to wear religious symbols at work) and French-speaking schools, where they will be prohibited from doing so.

For the CAQ government, there must be a clear and total separation between the State and religion in Quebec and the judgment of the Court of Appeal is entirely in this direction.

Patrick Taillon, professor of law at Laval University, believes that this judgment, by its tone and content, is the type to “contribute to the social acceptability” of secularism advocated by the Quebec government.

In his opinion, it is a great victory for the Legault government and a defeat for Judge Blanchard, of first instance, he said. Because unlike this magistrate who considered that wearing religious symbols was part of the management power of schools, this has its limits, according to the Court of Appeal.

School boards manage their schools, “but it is not an enclave,” notes Patrick Taillon, and school authorities “must respect the laws of Quebec.”

Furthermore, in adopting its law, the Legault government invoked the derogation provision – the “notwithstanding clause” – to avoid a legal challenge from those who would seek to invalidate it by arguing that it is discriminatory and contrary to the Charter of rights and freedoms.

Here again, underlines Patrick Taillon, the Court of Appeal mentions in passing that the law was adopted with the derogation clause, but that it could very well be defended on the ground of reasonableness in itself.

Constitutionalist Daniel Turp also notes that the Court of Appeal gave a slap on the wrist to Judge Blanchard of the Superior Court.

The Court of Appeal insists on the fact “that we cannot call into question the derogation clause. It is enshrined in the constitution and we cannot blame governments for using it,” underlines Daniel Turp.

“A victory all the way”

In the hall of the Court of Appeal in Montreal, groups that argued in favor of the provisions of the law welcomed a “victory across the board.”

“Today is a great victory for Quebec’s ability to make its choices,” declared the lawyer for the Quebec Secular Movement, Guillaume Rousseau. “This is a clear disavowal for all those who have been telling us for years that it is possible to circumvent the derogation clause,” he added subsequently.

As for the aspect affecting English-speaking school boards, Mr.^e Rousseau noted that this decision demonstrated that “the right to secular public services is for everyone.”

The president of the English Montreal School Board (CSEM), Joe Ortona, said he was “disappointed” with the decision rendered Thursday. Although he prefers to first take the time to analyze the judgment, he is already raising the possibility of going to the Supreme Court. “It’s definitely on the table. We must base ourselves on legal principles and not emotions,” he insisted.

Justin Trudeau reaffirms his opposition

There is a good chance that the case will go to the highest court in the country, and if necessary, the Canadian government will participate in the process, Canadian Justice Minister Arif Virani reiterated Thursday.

“If the appeal were accepted, it would be a matter of national interest,” he argued at a press briefing, nevertheless saying he wanted to take the time to read the decision before going any further.

Thursday noon, on the sidelines of an announcement on housing in Ontario, Prime Minister Justin Trudeau reaffirmed his long-standing opposition to the Law on State Secularism.

“If and when the issue [se retrouvera] at the Supreme Court, we will intervene as the federal government to protect and support the Canadian Charter of Rights and Freedoms,” he said.

Conservative leader Pierre Poilievre also disagrees with Bill 21, and in the past, he has been in favor of Ottawa participating in a possible challenge.

The same goes for New Democrat leader Jagmeet Singh, who expressed his disappointment with the court’s decision on Thursday.

“We respect the authority of the Court of Appeal, but like many Quebecers, we are very sad about the impacts of this discriminatory law,” he said on the X network.

An “odious” desire to protest

While rejoicing at this victory for the CAQ government, the leader of the Bloc Québécois, Yves-François Blanchet, castigated the liberal desire to challenge it before the highest court in the country.

“Recourse to the courts is always legitimate. Supported by the state against another government is something else. To do it with the money of Quebecers itself is literally odious,” he said at a press briefing.

The Bloc leader also made a prediction: “If we go into the election campaign with that, I think the election campaign will be devastating for what remains of the Liberals.”

In Quebec, however, some denounce the use of the derogation clause. This is the case of the Liberal Party of Quebec, which believes that the CAQ uses it in an “excessive” manner, which means that “the Law on State Secularism is shielded from judicial review.” “For us Liberals, it has always been very clear that the wall-to-wall use of notwithstanding clauses prevents a balancing of laws in the courts. The approach of the CAQ, which preemptively chooses to prevent any legal recourse, is, for us, unacceptable,” lamented the interim leader of the official opposition, Marc Tanguay.

With the collaboration of Charles Lecavalier, The Press