The State Secularism Act does not deprive anyone of the right to stand for election, pleaded the Quebec government in the Court of Appeal. But what is the use of this right if, once elected, a woman covering her face does not have the right to sit, retorted the lawyer of opponents to the Law.
This thorny question was at the heart of the constitutional debates which took place in the Court of Appeal on Thursday.
Article 8 of the State Secularism Act — known before its passage as Bill 21 — prescribes that deputies must perform their duties with their faces uncovered.
Opponents of Bill 21 have argued that this provision violates section 3 of the Canadian Charter of Rights and Freedoms, which establishes that all citizens have the right to be a candidate in federal or provincial elections.
Judge Marc-André Blanchard of the Superior Court, in his April 2021 decision, agreed with them and declared this section of Bill 21 inoperative. The only other portion of the law that he invalidated was the one that prohibited the wearing of religious symbols to employees and teachers of English school boards.
“Obviously, it follows logically from the fact that if an elected person who wears clothing that covers his face cannot sit in the National Assembly, the fact that he can still remain eligible for a provincial election in Quebec constitutes in reality the recognition of a situation that is as absurd as it is untenable,” wrote the magistrate.
Quebec appealed both portions of the judgment. He pleaded Tuesday on the English school boards and Thursday on the prohibition for the deputies of the National Assembly to work with their faces covered.
The law did not have the effect of preventing anyone from running or being elected: “it did not arise”, insisted Me Isabelle Brunet on behalf of the Attorney General of Quebec.
Perhaps this did not arise because it is obvious: it is useless, then intervened judge Yves-Marie Morissette.
Opponents of Bill 21 presented arguments along the same lines: “the right to eligibility necessarily includes the right to sit, otherwise to be eligible is not of much use”, launched Mr.e Olga Redko, who notably represents the National Council of Canadian Muslims and the Canadian Civil Liberties Association.
Section 3 of the Charter protects “the real opportunity” to participate in the democratic process, she added.
And to say that the law does not prevent anyone from sitting if the persons concerned agree to remove what covers their face is not a valid argument according to her. “Religion is an integral part of identity,” she pointed out, adding that this finding was made by the Supreme Court of Canada itself. We cannot therefore ask a person to remove part of his identity.
With this debate, the Court adjourned until next Wednesday.