Appeal Court upholds Quebec law that bars teachers, police from wearing religious symbols

The Quebec Court of Ap‐ peal has upheld the province's controversial secularism law in a ruling on challenges to the law's constitutionality released Thursday afternoon.

The heavily anticipated judgment is 290-pages long and quashes a previous ex‐ ception, made by Superior Court Judge Marc-André Blanchard, that allowed En‐ glish schools to employ teachers wearing religious symbols - such as a head cov‐ ering - while on the job.

A panel of Appeal Court judges heard arguments from civil liberties groups challenging the law, as well as from the government, in November 2022.

Premier François Legault's government had appealed the Superior Court decision, rendered in April 2021, that upheld most of the law but made the exception for En‐ glish schools.

His government had said the exception created an un‐ fair distinction between fran‐ cophone and anglophone schools.

In a summary of their de‐ cision Thursday, the Appeal Court justices, Manon Savard, Yves-Marie Morris‐ sette et Marie-France Bich, said the law does not go against "the unwritten princi‐ ples of the Constitution, nor the constitutional architec‐ ture, nor any pre-Confedera‐ tion law or principle having constitutional value."

They said their judgment had nothing to do with "di‐ verse opinions about [the law], whether politically, soci‐ ologically or morally."

"The Court, like the Supe‐ rior Court before it, is in fact acting here as part of a pro‐ cess of monitoring the legal‐ ity of the law (a process initi‐ ated by different groups of litigants) and it is not ruling on the wisdom of the law," the judges wrote.

The secularism law, which has been in place since June 2019, prevents a number of civil servants - including teachers and police officers from wearing religious sym‐ bols while on the job.

The justices said that, in their opinion, Blanchard had erred in creating the excep‐ tion for English schools. They said the law did not impede anglophone students from receiving their minority-lan‐ guage education.

"Rather, what is at issue here is a restriction on the re‐ cruitment of personnel, which however remains un‐ related to any linguistic con‐ sideration," the judges wrote.

WATCH | What's in the Quebec Court of Appeal de‐ cision on Bill 21?:

The judges did however maintain another exception created in Blanchard's judg‐ ment - that MNAs be exempt from the law - saying elected officials should have the right to wear religious symbols, unlike other representatives of the state in positions of authority such as judges, Crown prosecutors, prison guards, police officers, school principals and teachers.

Several groups have chal‐ lenged the law's constitution‐ ality. The Canadian Civil Lib‐ erties Association and the

National Council of Canadian Muslims were among those arguing Bill 21 discriminates on the basis of religion.

Arguments in the Court of Appeal case were heard by a panel of judges a year and a half ago. At the time, the panel of judges hinted that the case hinged on whether the bill disproportionately discriminates against Muslim women who wear the hijab.

Legault: Quebec will continue to use notwith‐ standing clause

A key argument of groups opposed to the law is that it discriminates on the basis of gender by disproportionately targeting Muslim women. Provincial laws that can be shown to be discriminatory on the basis of gender can‐ not be shielded by the notwithstanding clause.

The CAQ pre-emptively in‐ voked the constitutional notwithstanding clause when drafting the bill to protect it against legal challenges.

The clause gives provinces the power to override por‐ tions the Canadian Charter of Rights and Freedoms for re‐ newable periods of five years.

But the Appeal Court judges said the law, and its use of the notwithstanding clause, couldn't be "invali‐ dated" based solely on dis‐ crimination on the basis of gender. They also said the law itself does not go against that part of the Canadian Charter of Rights and Free‐ doms.

In a short news confer‐ ence, Legault told reporters the decision was "a great vic‐ tory for the Quebec nation."

"The Quebec government will continue to use the notwithstanding clause as long as necessary for Canada to recognize the social choices of the Quebec na‐ tion. It's non-negotiable," the premier said. Disappointment

Joe Ortona, chair of the English Montreal School Board, which first challenged Bill 21 in Superior Court, said he was disappointed by the decision, especially for all the teachers who would be af‐ fected by the law from now on.

"My heart goes out to them," Ortona said. "It's part of the reason we launched this challenge to begin with. We think that teachers should have the right to wear whatever they want."

Ortona said he would be reviewing the decision before deciding with the board whether to apply for a Supreme Court appeal.

Amrit Kaur, a teacher who is Sikh and wears a turban, left the province after the bill was passed.

"It changed my life drasti‐ cally. I had to leave my home. I had to leave my family, my friends, go to a new province that I've never been to be‐ fore, reacclimatize myself to a new curriculum, and just start from zero," Kaur said in an interview with CBC on Wednesday.

Other groups that have challenged the law have al‐ ready said they would take the case to the country's highest court.

Noa Mendelsohn Aviv, ex‐ ecutive director of the Cana‐ dian Civil Liberties Associa‐ tion, called the decision "painful" and said the organi‐

zation would pursue its fight against the law.

"What's next as we fight it? We have fought it from the very first day and we will con‐ tinue fighting in the courts and with the public to get this bill reversed, struck down, anything we can do to restore fundamental rights to everybody," said Mendelsohn Aviv.

The Fédération des fem‐ mes du Québec, which gave expert testimony to overturn the law also said Thursday's decision is a "considerable loss" and that Bill 21 rein‐ forces Islamophobia in the province.

"Muslim women are the first targets of the public de‐ bate on secularism," said the federation's president Sylvie St-Amand in a statement. She adds that she's worried this most recent ruling will lead to an increase in vio‐ lence already being experi‐ enced by Muslim women.

"A feminist society can never tolerate laws that re‐ strict women's rights to make decisions about their bodies and beliefs, that limit their ability to participate in soci‐ ety, obtain services or find employment," reads the statement.

Next,

Court?

Federal Justice Minister the

Supreme

Arif Virani said in a statement he expects there will re‐ quests to bring the case to the Supreme Court of Cana‐ da and if the court agrees to hear the appeal, the case would become a "national is‐ sue."

"Our government will be there to defend the Charter before the Supreme Court of Canada. This case concerns fundamental rights and free‐ doms and concerns the inter‐ pretation and application of the Charter. We are ab‐ solutely committed to partici‐ pating in this important na‐ tional discussion with broad implications for all Canadi‐ ans," Virani said in the writ‐ ten statement.

Guillaume Rousseau, a lawyer for the Mouvement laïque québécois, one of the groups in favour of the law and which participated in the appeal of the Superior Court decision, called Thursday's judgment a "victory on all fronts."

"It's a great victory for all of those who support a secu‐ lar Quebec, and it's a espe‐ cially a victory for those who support Quebec's liberty, Quebec's autonomy," Rousseau told reporters at the courthouse in downtown Montreal.

"This is a clear disavowal for all those who have been telling us for years that it is possible to circumvent the derogation clause."

Ahead of the Appeal Court decision's release, Prime Minister Justin Trudeau said at a housing an‐ nouncement in Ontario that he wanted to reiterate his op‐ position to Quebec's secular‐ ism law and said his govern‐ ment would support a Supreme Court appeal.

Bloc Québécois Leader Yves-François Blanchet criti‐ cized Trudeau and Virani for saying they would pick a side in a Supreme Court case.

"Using the courts as a re‐ course is always legitimate. Supported by the state against another government is something else," Blanchet said.