Quebec Superior Court upholds most of religious symbols ban, but English-language schools exempt

The Quebec Superior Court has struck down some sections of the province's secularism law but also ruled that its most controversial provisions are constitutional. The government plans to appeal the decision, saying the exemption for anglophones will create a more divided province.

Government plans to appeal, saying exemption will create a more divided Quebec

The ruling on whether Quebec's controversial ban on religious symbols is constitutional was delivered roughly four months after the trial wrapped up in Montreal. (Ivanoh Demers/Radio-Canada)

Quebec's secularism law violates the basic rights of religious minorities in the province, but those violations are permissible because of the Constitution's notwithstanding clause, a Superior Court judge ruled on Tuesday.

But the ruling by Justice Marc-André Blanchard also declared that the most contentious parts of the law — the religious symbols ban for many government employees — can't be applied to English schools.

The desire of English school boards to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms, Blanchard said in his decision.

Crucially, that section of the charter (23) is not covered by the notwithstanding clause.

Not long after the decision was handed down, Quebec Justice Minister Simon Jolin-Barrette, the architect of Bill 21, said the province plans to appeal.

He said the court's decision to exempt English schools threatens to divide the province along linguistic lines and create two categories of Quebecers.

"We don't agree with the judgment," he said. "We need to keep united in Quebec, and all the laws that are adopted here at the National Assembly have to apply to everyone."

Justice Minister Simon Jolin-Barrette said Tuesday the province will appeal the decision on the government's secularism law. (Sylvain Roy Roussel/Radio-Canada)

Other than the decision regarding English schools, the judgment largely left the law intact. It was facing four separate legal challenges, each containing several different arguments about why the law is unconstitutional.

The 240-page ruling comes roughly a year and a half after the Coalition Avenir Québec government passed Bill 21, which bans some civil servants, including teachers, police officers and government lawyers, from wearing religious symbols at work.

The restrictions were necessary, the government said, to protect Quebec's unique version of secularism, or laicity.

Civil liberties groups, including the National Council of Canadian Muslims and the Canadian Civil Liberties Association, began filing lawsuits against Bill 21 as soon as it was passed. 

In passing the law, the Quebec government invoked the notwithstanding clause, meaning the law couldn't be challenged on the grounds that it violated basic rights contained in sections 2 and 7 through 15 of the charter.

These sections contain safeguards for free speech, religious freedom and gender equality.

A protest was quickly organized Monday in downtown Montreal to denounce the law, and call for it to be struck down in its entirety.

Law affects Muslim women above all, judge says

Blanchard said the government respected the rules for invoking the clause. He made it clear, though, that the law trampled on minority rights by restricting what they can wear in the workplace, such as a hijab.

"The court highlights the evidence [that] undoubtedly shows that the effects of Law 21 will be felt negatively above all by Muslim women," the decision reads.

"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."

Blanchard also ruled that members of the province's National Assembly can't be forced to provide services to the public with their faces uncovered.

In other words, MNAs are allowed to wear religious symbols that cover their faces, such as a niqab, in accordance with the section of the charter that guarantees every citizen the right to be eligible to vote and be a member of the legislature.

WATCH | A Sikh teacher reacts to the ruling:

Ruling on Quebec's secularism law a small victory, Sikh teacher says

2 years ago
Duration 1:20
Amrit Kaur, a Montreal high school teacher who moved to British Columbia, says the court ruling on Bill 21 is a small victory for those who teach in English schools, but those trying to work in the French system are still suffering.

A win for English school boards

The ruling represented a victory for English school boards, who have been outspoken against the law even as they fight for their very existence in a separate battle over the province's education reforms. 

The English Montreal School Board, which brought forward one of the challenges against Bill 21, said in a statement it was "elated" with the decision to exempt English-language boards.

"We value the diversity of our students and staff and respect their personal and religious rights, which are guaranteed both by the Canadian and Quebec Charters of Rights," said board chair Joe Ortona.

In a statement of its own, the Dorval-based Lester B. Pearson School Board, another English board, said the ruling would go "a long way in terms of ensuring religious freedom can continue" in its different schools and centres.

But teacher Amrit Kaur, a Sikh woman from Montreal who wears a turban (dastar), described the ruling as "bittersweet."

During the trial last November, Kaur told the court she was forced to take a teaching job in British Columbia after she finished her education degree in 2019.

On Tuesday, Kaur said she is reminded of the many teachers trying to work in the French system "who can't teach and they have to re-evaluate what they're going to do with their lives."

"My heart really goes out to them, and I'm thinking about them a lot today," she said.

Kindergarten teacher Haniyfa Scott gives a lesson to a class in Montreal in April 2019. Bill 21 bans the wearing of religious symbols for new government-placed employees within schools, the courts and law enforcement. (Graham Hughes/The Canadian Press)

Law's challengers also see an avenue to appeal

Tuesday's decision marks the first time a court has issued an opinion on the law's constitutionality. It is, however, highly unlikely to settle the matter.

Most legal experts expect the issue will eventually be appealed to the Supreme Court of Canada.

Michael Bryant, executive director of the Canadian Civil Liberties Association, said the judgment "sets us up well for an appeal," given that it acknowledges the harm the law causes.

"Of course, everybody who cares about what this law does to people's dignity are disappointed that that law continues," he said.

"But I would say that, legally, I am heartened as to what the future holds because I think we're well set up to make a very strong appeal."

WATCH l Understanding Bill 21 and the notwithstanding clause:

Understanding Bill 21 and the notwithstanding clause

2 years ago
Duration 0:59
McGill Law Dean Robert Leckey discusses how some groups challenging Bill 21 are trying to get around the notwithstanding clause.

With files from Justin Hayward and Simon Nakonechny