Court challenge targets Quebec secularism law

  • November 4, 2020

OTTAWA -- Lawyers challenging Bill 21, Quebec’s so-called secularism law, are arguing that because the law disproportionately targets women the provincial government cannot use the notwithstanding clause to shield it from any challenge.

“We will demonstrate that the law is unconstitutional and invalid,” said the Canadian Civil Liberties Association (CCLA), who along with the National Council of Canadian Muslims (NCCM) and the English Language School Board of Montreal are challenging Bill 21 before the courts.

Quebec has tried to shield the law, which bans the wearing of religious symbols by anyone who works in the public sector since it came into effect in June 2019, by invoking the notwithstanding clause of the Canadian Charter of Rights and Freedoms. But one of the main arguments those challenging the law are making is that the notwithstanding clause is not valid in this instance because Bill 21 disproportionally impacts females by not allowing female teachers who wear a head covering to teach in public schools. The sexual equality guarantees in Section 28 of the Charter of Rights and Freedoms are not subject to the notwithstanding clause.

Arguments began before a Quebec Superior Court judge in Montreal Nov. 2 in a battle most legal observers expect will wind up in Canada’s Supreme Court. Three female teachers testified how Bill 21 has affected them and their employment prospects in Quebec. The women, two Muslims and a Sikh, said their careers were derailed and they became targets of bigotry.

“Our unwavering resolve to keep fighting for marginalized people in Canada, and our commitment to justice and equality, are why we urge everyone to stand together against the religious symbols ban,” said the CCLA’s director of equity Noa Mendelsohn Aviv.

The primary case actually groups four different lawsuits trying to upend Bill 21, a controversial law that has been criticized and condemned by most religious organizations in Canada, including the Canadian Conference of Catholic Bishops, as an affront to religious freedom.

Opponents have made the argument that Bill 21 unfairly targets females in court before, but a Quebec appeal court ruled against an effort to suspend the law until the primary case was argued, though the justices involved at the time conceded Bill 21 does infringe of the rights of some Canadians.

The Quebec Court of Appeal ruled in a 2-1 decision released Dec. 12, 2019, that it would not suspend aspects of the law before the primary case against the law was heard in court, and it appears that the use of the notwithstanding clause by the Quebec government was a critical factor in their decision. Both judges who ruled not to suspend the law cited the use of the clause as a reason for not being able to act.

The Quebec government’s position has always been that Bill 21 protects the secular nature of Quebec, that the Quebec government has the absolute right to make laws as it deems fit and that the preemptive use of the notwithstanding clause shields the law from any court interference. And the Quebec government has repeatedly pointed out that all public opinion polls in Quebec show that Bill 21 is supported by a large majority of Quebecers.

Outside of Quebec, a number of provincial governments, including Ontario, have passed motions condemning Bill 21 but for the most part Canada’s federal political parties have been silent on the issue, with both the NDP and Conservative leader Erin O’Toole explicitly saying Bill 21 is a provincial matter to be decided in Quebec.

Many human rights and religious groups have been calling on the federal government to get involved in the legal challenges to Bill 21, but its position has been to stay out of the Quebec court cases while holding out the possibility of getting involved should the matter end up before the Supreme Court.

The CCLA and NCCM have said previously that they know the court fight against Bill 21 could go on for years, and that they were prepared to fight the law for however long it takes.

“We know this has the potential to go all the way to the Supreme Court, and we could be looking at a long battle of five-to-seven years,” a statement on the CCLA website said, adding “and we will fight this to the very end.”

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