MONTREAL— The Centre for Israel and Jewish Affairs (CIJA) says it is disappointed by a Quebec judge’s decision to uphold of most of the province’s controversial state secularism law and reiterated its opposition.
On April 20, Superior Court Justice Marc-André Blanchard issued a 240-page decision that leaves Bill 21 intact, exempting its application only to English school boards and members of the National Assembly.
The Quebec government announced immediately that it would appeal the striking down of those sections. Premier François Legault said, “It’s illogical. Actually, it’s as if laicity and values apply in a different way to anglophones than francophones.”
Blanchard agreed with the plaintiffs that the legislation violates the freedoms of religion and expression protected by the Charter of Rights and Freedoms, but the government’s inclusion of the notwithstanding clause in Bill 21 allows the overriding of those freedoms.
However, guarantees provided to minority-language communities in Section 23 of the charter trump any notwithstanding clause, he ruled. The anglophone community’s right to control its public schools in Quebec includes the authority to hire whom it wishes, Blanchard confirmed.
He acknowledged the harm to those whose religion requires visible expression in that it prevents them from certain employment and criticized the inclusion of the notwithstanding clause as heavy-handed, but legal precedence left no choice but to respect the government’s authority to use it.
The judge also found that the law cannot be applied to elected officials, reasoning that no one can be barred from public office based on their religious practice.
Bill 21, adopted in June 2019 by the Coalition Avenir Québec government, prohibits certain public sector employees deemed to represent state authority from wearing religious symbols on the job. Among these are police officers, judges, Crown prosecutors and other government lawyers, and teachers.
Although the law does not specify which symbols, it is understood to include headwear, such as hijabs, turbans and kippot, as well as jewelry like crosses.
The legislation, officially An Act Respecting the Laicity of the State, was immediately challenged jointly by the Canadian Civil Liberties Union (CCLU) and the National Council of Canadian Muslims (NCCM). The English Montreal School Board (EMSB) as well as a teachers’ federation and three observant teachers — two Muslim, one Catholic, backed by a broad-based intercultural coalition — filed separate lawsuits. The four cases were heard together in Superior Court over 28 days in November and December.
The plaintiffs have 30 days to file an appeal, which the CCLU and NCCM have indicated they will do. Whatever the outcome in the Quebec Court of Appeal, it is expected the case will proceed to the Supreme Court of Canada, a process that could take years.
Prime Minister Justin Trudeau does have the power to expedite the matter by seeking a reference from the Supreme Court on the constitutional issues the case raises.
“CIJA is deeply disappointed by today’s Quebec Superior Court decision to uphold provisions of Bill 21 that severely restrict religious freedom and the ability of Jewish Quebecers and other faith-based communities to freely pursue careers in the public sector,” the organization’s Quebec vice-president Eta Yudin said in a written statement.
“While we support religious neutrality of the state, we have consistently expressed our opposition to Bill 21. We believe that secularism of the state is an institutional duty, not a personal one, and should not rest on the outward appearance of individuals.”
At the least, all teachers, whether employed by English or French school boards, should be exempted, Yudin said.
“Furthermore, as we expressed during our presentation before the parliamentary commission on Bill 21, it is our view that the government failed to make the case that Quebec’s secularity faces a threat that justifies invocation of the notwithstanding clause. CIJA will continue to voice our community’s steadfast opposition to Bill 21.”
During public hearings in the spring of 2019, the Lord Reading Law Society vigorously opposed the bill saying it would, in effect, create a “state religion” imposing neutrality of society and depriving individuals of their fundamental rights and freedoms. This association of Jewish lawyers believes the bill also contravenes the 1948 Universal Declaration of Human Rights and 1976 International Covenant on Civil and Political Rights, to which Canada is a party.
B’nai Brith Canada urged the entire law be scrapped, saying it “contributes to the divisions that already exist in Quebec society” and “advocates a militant form of laicity to the detriment of religious individuals and communities that cannot be justified.” The organization feared that hateful acts against minorities would increase.
All four lawsuits sought the law’s annulment on constitutional grounds but offered differing, and complex, legal arguments on why it violates fundamental rights and is discriminatory. The law applies to all religions, not only minorities.
Public employees who wore such symbols before the law was adopted are “grandfathered,” but only as long as they stay in the same job description.
Simon Jolin-Barrette, the minister responsible for the bill, said it will continue to be enforced until the appeal is heard. EMSB chair Joe Ortona said the EMSB and eight other English school boards in the province consider the Superior Court judgment effective immediately.