Law in Quebec

The law also makes it obligatory for students and personnel working in educational institutions, including subsidized and non-subsidized private schools, to have their face uncovered when they are on the premises of a school, a vocational training centre or adult education centre. The prohibition even covers homeschooled children and their parents when “any service” is being provided to them by a school.

The law also proscribes the granting of religious accommodations, derogations or other adaptations in the province’s education system, and interdicts prayer rooms “or other similar practices” in schools. Teachers will be subject to an annual appraisal by their employers to ensure that they meet their new obligations.

“Bill 94 is a logical continuation in some respects of this government’s program and part of a broader effort to lock down this extreme form of secularism,” remarked Pearl Eliadis, a McGill law professor specializing in human rights. “This is an attempt to exploit a sort of nationalist trend in Quebec, and an attempt to further increase the essentially discriminatory provisions with regard to religious minorities, especially Muslim women.”

The Quebec English School Boards Association (QESBA) “strongly condemns” the adoption of 94, describing it as nothing less than a coercive and unnecessary intrusion into Quebec’s education system. Bill 94 puts ideology before education and threatens the very foundations of Quebec’s public schools, said QESBA President Joe Ortona. “Bill 94 narrows what it means to belong in Quebec’s schools,” added Ortona. Besides imposing a rigid, state-defined notion of “Quebec values,” Bill 94 entrenches exclusion by enforcing sweeping restrictions on religious accommodation, mandating face uncovering, and invoking override clauses that suspend rights protected under both the Canadian and Quebec Charters, maintains QESBA.

Bill 94 follows on the heels of a series of legislative proposals enacted this year by the Quebec government that have alarmed human rights advocates, labour organizations and public figures as they either whittle away longstanding rights, erode the standing of the Quebec Charter of Human Rights and Freedoms or give unfettered powers to ministers. In May, Quebec passed a law that gives it sweeping new powers to curb and limit strikes or lockouts by broadening the notion of essential services and granting the labour minister “completely discretionary” powers that allow him to refer labour disputes to an arbitrator — proposals that critics have slammed as a frontal attack on the constitutionally protected right to collective bargaining.

In late May, the Quebec government also passed Bill 84, a “divisive” bill that aims to integrate immigrants into a “common culture,” shelving a longstanding model of interculturalism and inclusiveness in favour of one that leans on assimilation. About a hundred community, human rights and union organizations and some 30 public figures called on the Quebec government to put An Act respecting national integration into the Québec nation on hold, an entreaty the government rejected.

“This government has been passing very right-wing legislation, and it’s lucky that it’s got (U.S. President Donald) Trump worrying people because people are not looking for internal battles so much because they think we have to be ready for the confrontation with Trump,” remarked Julius Grey, a Montreal human rights lawyer.

Paul-Etienne Rainville of the Ligue des droits et libertés, a not-for-profit human rights organization based in Montreal, has an equally scathing assessment of the latest effort by Quebec to bolster secularism. The Quebec government, said Rainville, has unfortunately been conducting discourses that stigmatize “members of ethnic, racialized and religious minorities,” and linking them with “social problems” plaguing the province such as the endemic housing crisis, interminable waiting times for health care and a lack of access to affordable daycare.

“They’re attacking a number of rights, including the right to work, the right to dignity, the right to equality, freedom of conscience, freedom of religion, freedom of expression, and a number of other rights that are in fact normally recognized and protected by the Charters,” said Rainville, co-director of the research axis Immigration, Everyday Life, and Religion at the Centre for Interdisciplinary Research on Montréal at McGill University. “There really is a kind of legislative arsenal being put in place that infringes every time human rights, and more often than not also uses clauses that derogate from the rule of law.”

The Quebec government, just as it did with Bill 21, will in effect invoke the notwithstanding clause to shield Bill 94 from legal challenges. It does not have a choice, pointed out Louis-Philippe Lampron, a law professor and human rights expert at the Université Laval. That’s because Bill 94 goes even further than Bill 21, An Act respecting the laicity of the State, as it extends the ban on wearing religious symbols, said Lampron. “In other words, it is an extension of the Act” even though Bill 94 “oddly” does not amend Bill 21 but rather the Education Act and the Act respecting private education, said Lampron.

“On the potential challenge to the many changes that have been incorporated into Bill 94, everything will be decided with the Supreme Court decision, which will essentially clarify the state of the law in relation to wall-to-wall use of the notwithstanding provisions,” added Lampron.

In late January, the SCC announced that it agreed to hear a challenge against Quebec’s secularism law, even though Quebec invoked the notwithstanding clause in Bill 21. Quebec Superior Court Justice Marc-André Blanchard struck down in 2021 key provisions of the secularism law because it violates minority language education rights but the Quebec Court of Appeal overturned it, holding it was handcuffed by the provincial government’s use of the notwithstanding clause.

“How bad does the violation of rights need to be before a court will do something?” asked Eliadis rhetorically. “It’s a pretty egregious and obvious violation of religious freedoms. And as much as I support the separation of church and state, I think the courts have gotten it in Quebec completely wrong up until now.”

The use of the notwithstanding clause is troubling as it is a tacit acknowledgment that the law violates human rights, said Rainville. “They are trying to make the Charter subordinate to their law, rather than subjecting their law to the tests of the courts and the provisions of the Charters,” said Rainville. “So the logic of protecting human rights is inverted.”

Grey concurs. He asserts that the Quebec government is “weakening” the Charter through its use of the notwithstanding clause. “Quebec simply said we will not be bothered by the Charter,” said Grey. “If the Charter stands in our way, we’ll simply use the notwithstanding clause. So the Charter is nothing more than a suggestion.”

The Quebec government said that the law is a bid to strengthen secularism in schools after reports of a controversy at the Bedford elementary school in Montreal, in which a “dominant clan” of teachers intimidated students and other teachers and paid little heed to compulsory subjects such as science. The scandal prompted an audit of 17 other Quebec schools, which noted the existence of “issues related to open-face services, the prohibition on wearing religious symbols and the granting of accommodations.” The report however also found there was only one case of non-compliance with Quebec’s secularism law.

But Lampron and other legal experts don’t buy the provincial government’s reasoning behind Bill 94. “Essentially, the Bedford case was about a group of teachers who refused to teach parts of the compulsory curriculum, who got together in a gang and made sure they laid down the law inside the school so there was no mention of the wearing of problematic religious symbols, which is already covered by the secularism law,” said Lampron. “So that’s my first problem with Bill 94.”

Lampron views Bill 94 as a mere extension of the Bill 84, An Act respecting national integration into the Québec nation — and that is problematic. Under Bill 84, Quebecers who are immigrants are expected to learn French, “participate fully” in French in Quebec society, enrich Quebec culture, embrace state secularism and equality between women and men, and adhere to “democratic values and Quebec values” expressed in particular by the Quebec Charter.

But Lampron points out that “democratic values and Quebec values” are not defined in either proposed pieces of legislation. “The only thing we know about these democratic and Quebec values is that they include the secular nature of the state and the rights of freedom protected by the Quebec Charter,” noted Lampron. “But otherwise, we’re referring to a policy to be adopted by the government at a later date. So it’s part of a very pronounced trend to divert responsibility from the legislator to the executive branch of government.”

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This story was originally published in Law360 Canada.