Law in Quebec

But the hefty decision, to the dismay of the Quebec government and delight of some plaintiffs, also struck down key provisions, declaring that the Act respecting the laicity of the State (Act) cannot apply to English school boards because it violates minority language education rights, protected under Section 23 of the Canadian Charter. Quebec Superior Court Justice Marc-André Blanchard also held that members of the province’s National Assembly cannot be forced to provide services to the public with their faces uncovered.

Barely hours after the ruling was issued, the Quebec government announced that it plans to appeal the decision. So too will civil liberties groups who have vowed to continue to challenge Bill 21 as it is widely known, with legal observers expecting the case to eventually land before the Supreme Court of Canada.

“While we are pleased that the Quebec Superior Court has struck key provisions of Bill 21, we are disappointed that the law was not struck down and declared inoperative in its entirety,” said in a communiqué Tejinder Singh Sidhu, president of the non-profit World Sikh Organization of Canada, one of several interveners in the case. “It is almost inevitable that this decision will be appealed and we continue to review the decision with our legal team as we decide on next steps to challenge this unjust law.”

Adopted in June 2019, Bill 21 bars some provincial public servants in positions of authority, including judges, lawyers, notaries, police officers and teachers, from wearing religious symbols. From the get-go, the law was denounced by critics as an anti-immigrant bill that overrides fundamental minority rights, shielded by by Section 33 of the Charter, otherwise known as the notwithstanding clause, a seldom-used provision that allows government legislation to override some parts of the Charter for up to five years at a time.

The bill was almost immediately challenged by education student Ichrak Nourel Hak and a host of civil liberties groups, including the Council of Canadian Muslims and the Canadian Civil Liberties Association.

LEGAL ARGUMENTS

Besides Charter arguments, the legal challenge asserted that the Act is in breach of a number of constitutional rules. Litigants asserted that it contravened the constitutional division of powers. They argued that in pith and substance, sections 6 and 8 of Bill 21 constituted criminal legislation, pursuant to section 91(2) of the Constitution Act, 1982 and therefore was ultra vires of provincial jurisdiction. Section 6 of the Act prohibits persons listed in Schedule II of the Act from wearing “religious symbols,” controversially and vaguely defined as any object either worn as a result of the religious conviction or can be reasonably considered as referring to the wearer belonging to a religious group. Section 8 of the Act requires personnel members of a public listed in Schedule 2 to provide services with their faces uncovered.

The litigants also argued that the Act unilaterally modifies the internal architecture of Canada’s Constitution as it alters the legally inclusive nature of public institutions in Quebec. They also contended that some sections, including Article 5 and 6 of the Act, violated the constitutional principle of judicial independence. Schedule 2 of the Act provides an exhaustive list of legal professionals covered by the law. The Director of Criminal and Penal Prosecutions as well as government lawyers, lawyers or notaries acting before the courts or “with third persons in accordance” with a legal services contract with a minister have to abide by the law. So do judges, commissioners, and administrative justices of the peace. The Quebec Judicial Council has been give the mandate to ensure its implementation with respect to judges of the Court of Quebec, the Quebec Human Rights Tribunal, the Professions Tribunal, municipal courts and presiding justices of the peace.

Justice Blanchard dismissed most of the challenges. He rejected the notion Bill 21 amounts to criminal legislation due to the absence of criminal penalties. He also rebuffed claims that Bill 21 unilaterally changed the internal architecture of the Canada’s Constitution. “He rejected the idea that there were any unwritten principles or any unwritten architecture that would operate here, and in particular, he referred to the fact that in the kind of hierarchy of constitutional sources, we would generally view the written Constitution as prevailing over unwritten pieces,” observed Robert Leckey, a constitutional law expert and Dean at McGill Law School.

BILL INFRINGES RIGHTS

But Justice Blanchard did find that Bill 21 infringes fundamental rights to religious expression under the Canadian Charter and the Quebec Charter of Human Rights and Freedoms, holding that it is “cruel and dehumanizing,” and has “serious consequences on persons who are targeted.”

“The Court underlines evidence that unquestionably shows that the effects of Bill 21 will be felt negatively above all by Muslim women,” said Justice Blanchard in Hak c. Procureur générale du Québec, 2021 QCCS 1466. “On the one hand by violating their religious freedom, and on the other hand by also violating their freedom of expression, because clothing is both expression, pure and simple, and can also constitute a manifestation of religious belief.”

Justice Blanchard also found that the Quebec’s government use of the notwithstanding clause precluded him from striking down most of the law, and even from undertaking a full analysis of most of the Charter arguments. He was bound by stare decisis, in particular by the Supreme Court of Canada’s decision in Ford v. Quebec (Attorney General), [1988] 2 SCR 712, which is “legally unassailable,” said Justice Blanchard. That did not prevent him however from castigating the provincial government for its “excessive” and overly “broad” use of the notwithstanding clause.

“For this judge, if not for the notwithstanding clause protecting it, this law would clearly violate fundamental rights,” said Leckey. “He expressed some unease with the sort of sweeping use of the notwithstanding clause by the Quebec legislature because it covered all parts of the Canadian and Quebec Charters. He didn’t need to say that but took pains to suggest that as the guardian of the Constitution he was troubled by such an extensive use of the notwithstanding clause.”

Justice Blanchard should not have expressed his concerns, argues Université de Sherbrooke law professor Maxime St-Hilaire. “He decided to gratify us with his personal opinion on the conditions governing the legitimacy of Section 33 of the Charter,” noted St-Hilaire. “That is frankly surprising. He’s there to apply the law, not nominated nor paid to give his personal opinion.”

St-Hilaire also has problems with the finding that English school boards are protected under the Constitution’s minority language rights and therefore exempt from Bill 21. Justice Blanchard ruled that language rights include cultural issues such as allowing religious expression among school staff – a finding that St-Hilaire believes goes too far.

“We are in the midst of stretching linguistic rights a bit too much,” said St-Hilaire. “It will polarize the debate based on a language axis while that is really not what’s at issue. It will increase already existing tensions between francophone Quebec and English Canada. That is regrettable, and I hope it will be overturned in appeal.”

Julius Grey, a Montreal human rights lawyer with Grey Casgrain LLP who represented the Canadian Human Rights Commission and the intervener the Quebec Community Groups Network, asserts that the decision is an important one, particularly for people who want to become teachers.

“It’s an excellent judgment that will nevertheless be appealed,” said Grey. “What I think is arguable is gender equality, Section 28, as well as the limits of the use of the notwithstanding clause. The judge said rightly that he was bound. But it doesn’t mean that higher courts will do the same thing. I’m heartened and glad, and the fact that the Quebec government was so quick to appeal means that it really showed the success of our side in arguing for English rights and voting rights.”