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

The Quebec Court of Appeal 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 exception, made by Superior Court Judge Marc-André Blanchard, that allowed English schools to employ teachers wearing religious symbols — such as a head covering — 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 English schools. 

His government had said the exception created an unfair distinction between francophone and anglophone schools. 

In a summary of their decision Thursday, the Appeal Court justices, Manon Savard, Yves-Marie Morrissette et Marie-France Bich, said the law does not go against “the unwritten principles of the Constitution, nor the constitutional architecture, nor any pre-Confederation law or principle having constitutional value.”

They said their judgment had nothing to do with “diverse opinions about [the law], whether politically, sociologically or morally.” 

“The Court, like the Superior Court before it, is in fact acting here as part of a process of monitoring the legality of the law (a process initiated 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 symbols while on the job. 

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

“Rather, what is at issue here is a restriction on the recruitment of personnel, which however remains unrelated to any linguistic consideration,” the judges wrote.

The judges did however maintain another exception created in Blanchard’s judgment — 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 challenged the law’s constitutionality. The Canadian Civil Liberties 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 notwithstanding 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 cannot be shielded by the notwithstanding clause.

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

The clause gives provinces the power to override portions the Canadian Charter of Rights and Freedoms for renewable periods of five years.

But the Appeal Court judges said the law, and its use of the notwithstanding clause, couldn’t be “invalidated” based solely on discrimination on the basis of gender. They also said the law itself does not go against that part of the Canadian Charter of Rights and Freedoms. 

In a short news conference, Legault told reporters the decision was “a great victory 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 nation. 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 affected 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 drastically. 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 before, 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 already said they would take the case to the country’s highest court. 

Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association, called the decision “painful” and said the organization 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 continue 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 femmes du Québec, which gave expert testimony to overturn the law also said Thursday’s decision is a “considerable loss” and that Bill 21 reinforces Islamophobia in the province.

“Muslim women are the first targets of the public debate 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 violence already being experienced by Muslim women.

“A feminist society can never tolerate laws that restrict women’s rights to make decisions about their bodies and beliefs, that limit their ability to participate in society, obtain services or find employment,” reads the statement. 

Next, the Supreme Court?

Federal Justice Minister Arif Virani said in a statement he expects there will requests to bring the case to the Supreme Court of Canada and if the court agrees to hear the appeal, the case would become a “national issue.”

“Our government will be there to defend the Charter before the Supreme Court of Canada. This case concerns fundamental rights and freedoms and concerns the interpretation and application of the Charter. We are absolutely committed to participating in this important national discussion with broad implications for all Canadians,” Virani said in the written 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 secular Quebec, and it’s a especially 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 announcement in Ontario that he wanted to reiterate his opposition to Quebec’s secularism law and said his government would support a Supreme Court appeal. 

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

“Using the courts as a recourse is always legitimate. Supported by the state against another government is something else,” Blanchet said.