The Legault government won an important victory on Thursday: the Court of Appeal maintains the ban on religious symbols for state employees in positions of authority and overturns the first instance judgment which exempted English-speaking school boards.
• Read also: The Law on State Secularism upheld by the Court of Appeal
• Read also: Law 21 maintained: “Quebec has just won an extremely important victory”
The unanimous judgment of the three judges agrees with the Legault government practically across the board.
In a short statement, Prime Minister François Legault was also delighted to see the court uphold the Law on Secularism, adopted in 2019. “It is truly a great victory for the Quebec nation,” he said. he declares.
His government, he asserts, will “continue to use the parliamentary sovereignty clause […] as long as it takes for Canada to recognize the social choices of the Quebec nation.”
Thus, the Court of Appeal recognizes Quebec’s right to prohibit the wearing of religious symbols by judges, prosecutors, police officers, prison guards and teachers in the exercise of their functions. The court also confirms the validity of the use of the notwithstanding clause to shield the law from legal challenges.
School boards
But above all, the judges overturn the decision of the Superior Court, which had exempted school boards from the application of the law. To justify himself, Judge Marc-André Blanchard used an article from the Canadian Charter of Rights and Freedoms which protects linguistic minorities and their culture.
The Court of Appeal does not agree with this reading and instead affirms that the Secularism Act “does not affect the linguistic educational rights” that the Charter confers on Quebec’s English-speaking minority.
The English Montreal school board, which contested the law, reiterates for its part that the measure contravenes its right of “management and control” in addition to sending “a message of intolerance and exclusion to our students and to their family”.
“We should have the right to employ female teachers without these arbitrary rules,” commented its president, Joe Ortona, leaving the court.
In its judgment, the Court of Appeal also recognizes that the law affects certain people, including Muslim women who wear the niqab or burqa. “The impact will be considerable, to the point in particular of depriving them of any prospect of employment in public or parapublic organizations under provincial jurisdiction,” we can read in the decision.
Quebec, however, loses on one point: the ban on sitting with one’s face covered in the National Assembly contravenes the Canadian Charter and must be made inoperative, writes the Court.
Indeed, section 3 of the Charter provides that “every Canadian citizen has the right to vote and is eligible for federal or provincial legislative elections.”
Supreme Court
Parties opposed to the ban on religious symbols are now exploring the possibility of taking the case to the Supreme Court.
If the highest court in the country agrees to hear them, the Trudeau government has already announced its intention to intervene to argue against Quebec’s use of the notwithstanding clause.
Federal Justice Minister Arif Virani explained Thursday that Ottawa is concerned to see provincial governments increasingly using this provision to evade the Charter.
Furthermore, the federal government believes that its use should be made as a last resort, “after a dialogue between parliaments, assemblies across Canada and the courts.”
Such intervention by the federal government to contest a law adopted by the National Assembly risks reviving tensions between Quebec and Ottawa. Already in May 2022, François Legault had described such a prospect as “a lack of respect towards Quebecers” on the part of the Trudeau government.
– With the collaboration of Michael Nguyen, Camille Payant and Raphaël Pirro
Some conclusions of the judges
- The Law is valid with regard to the sharing of powers.
- The Act infringes neither the Canadian Charter nor the equality of the sexes provided for in the Quebec Charter.
- The articles which derogate respectively from the Quebec Charter and the Canadian Charter are consistent with the derogation provisions.
- Due to the overriding provisions, the Act is exempt from judicial review.
- The ban on the wearing of religious symbols for presidents/vice-presidents of the National Assembly and the Minister of Justice does not violate the Canadian Charter.
- On the other hand, the obligation of uncovering the face in the exercise of the functions of members of the National Assembly contravenes the Charter and must be declared inoperative.