Quebec's English school boards will have to apply secularism law until court hears challenge

Quebec's English school boards will have to abide by the province's secularism law, known as Bill 21, until a challenge to the law can be heard in court.

EMSB didn't sufficiently prove how applying law would be harmful, Quebec Court of Appeal rules

Quebec Court of Appeal Judge Frédéric Bachand says English school boards didn't sufficiently proved how applying the province's secularism law would be harmful while they await the outcome of other legal challenges to the law. (Charles Contant/CBC)

Quebec's English school boards will have to abide by the province's secularism law, known as Bill 21, until challenges against and in favour of the law are heard in court.

The province's Court of Appeal has rejected a request by the English Montreal School Board which would have immediately exempted it and other English school boards from provisions of Bill 21 — such as the ban on hiring teachers who wear religious symbols.

In April, Quebec Superior Court ruled that though the law violates the basic rights of religious minorities in the province, those violations are permissible because of the Constitution's notwithstanding clause.

The decision upheld most parts of the law in the face of four separate legal challenges — including from the EMSB, the National Council of Canadian Muslims and the Canadian Civil Liberties Association — each containing several different arguments about why it is unconstitutional. 

But the Superior Court ruling did change one thing in the secularism law. It spared English school boards in Quebec from having to apply it, saying the boards' desire to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms.

The government appealed that part of Superior Court Justice Marc-André Blanchard's ruling, meaning the exemption could not take effect until the end of the appeal process, so the boards would continue to be subject to it during that time. 

The EMSB requested that the Court of Appeal apply Justice Blanchard's ruling immediately as the process moves forward because the case could take years and will likely end up before the Supreme Court of Canada.

That request was rejected Tuesday. 

"I find that the applicants have not discharged their burden to show, through precise, clear and concrete facts, that the filing of the appeal is likely to cause serious or irreparable prejudice," wrote Justice Frédéric Bachand in the ruling. 

English Montreal School Board Chair Joe Ortona says the Court of Appeal decision does not affect the 'merits' of the board's case in defending its exemption of Quebec's secularism law. (Steve Rukavina)

The EMSB had argued its culture was rooted in promoting diversity, and that by preventing the board from hiring a diverse range of teachers, Bill 21 was threatening that culture.

The board noted that, in his original decision, Blanchard had accepted testimony from an expert witness who found that limiting the number of teachers from diverse backgrounds was likely to harm students educationally and economically.

But to Bachand, that testimony and other evidence and arguments made by lawyers for the EMSB weren't enough. 

EMSB 'disappointed,' justice minister cries 'victory'

The EMSB released a statement Tuesday evening, reacting to the Court of Appeal ruling, saying it was "disappointed," but that the ruling "does not in any way determine the merits of the case."

"We remain committed to continue our challenge to Bill 21 and to defend our exclusive right to manage and control our institutions in accordance with our culture," EMSB Chair Joe Ortona said in the statement.

Meanwhile, Quebec Justice Minister Simon-Jolin Barrette, who tabled Bill 21 in his previous role as immigration minister, reacted on Twitter. 

"The law will continue to apply, as it should, for everyone and throughout Quebec. It is a victory for the secularism of the State, a value that we will defend to the end," Jolin-Barrette wrote.

The bill was tabled in May 2019 and was adopted into law that June, after the Coalition Avenir Québec government used a parliamentary mechanism called closure to speed through the passing of the law.

Representatives from the National Council of Canadian Muslims held a press conference on the steps of the Quebec Court of Appeal in July 2019, shortly after the secularism bill passed into law. (Ivanoh Demers/Radio-Canada)

The National Council of Canadian Muslims and the Canadian Civil Liberties Association are appealing the April Quebec Superior Court decision on the grounds that Bill 21 is unconstitutional, while Jolin-Barrette is also appealing the section of the decision that granted English school boards an exemption.