Hearings on constitutionality of Quebec’s secularism legislation underway in Court docket of Enchantment

Opponents of Quebec’s secularism legislation — referred to as Invoice 21 — argued earlier than…

Hearings on constitutionality of Quebec’s secularism legislation underway in Court docket of Enchantment

Opponents of Quebec’s secularism legislation — referred to as Invoice 21 — argued earlier than the province’s Court docket of Enchantment Monday that the CAQ authorities went too far in pre-emptively invoking the constitutional however clause with a purpose to shield the legislation from courtroom challenges.

The Quebec authorities and several other civil liberties teams are presenting arguments about a Superior Court docket choice final 12 months, which upheld most — however not all — of the province’s controversial secularism legislation.

Enacted underneath the Coalition Avenir Québec (CAQ) authorities in June 2019, the secularism legislation prohibits public college lecturers, law enforcement officials, authorities legal professionals and a bunch of different civil servants — and even some politicians — from carrying spiritual symbols at work.

“A legislation that pursues a objective that is categorically illegitimate in a society of rights and freedoms shouldn’t be protected by however clause,”  Alexandra Belley-Mackinnon, lawyer for a gaggle known as Coalition Inclusion Québec instructed the courtroom Monday.

As quickly because the legislation was handed, civil liberties teams, together with the Nationwide Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Affiliation (CCLA), started submitting authorized challenges. In all, 17 completely different teams, some in assist of the legislation and a few towards it, are represented on the hearings this week.

“Think about having to inform your daughter that she will by no means be a choose due to her look. Think about telling your son that he can by no means be a instructor due to his look,” Stephen Brown, the CEO of the NCCM, mentioned throughout a information convention Monday on the steps of the Montreal courthouse minutes earlier than arguments started.

“It is untenable.”

Difficult a ruling from 2021

In April 2021, Superior Court docket Justice Marc-André Blanchard dominated that the legislation violates the fundamental rights of non secular minorities within the province however is authorized due to Part 33 of the Canadian Constitution of Rights and Freedoms, also called the Structure’s however clause. 

The CAQ authorities pre-emptively invoked the however clause to defend its legislation from constitutional challenges. The clause permits provinces to exempt legal guidelines from sure sections of the constitution. Its utility to legal guidelines is topic to renewal each 5 years. 

Nonetheless, in his choice, Blanchard exempted English faculties from the spiritual symbols ban.

He additionally dominated that members of the province’s Nationwide Meeting are allowed to put on spiritual symbols that cowl their faces, corresponding to a niqab, in accordance with the part of the constitution that ensures each citizen’s proper to vote and be a member of the legislature.

Not lengthy after the choice was handed down, Quebec Justice Minister Simon Jolin-Barrette, the architect of Invoice 21, mentioned the province deliberate to enchantment the 2 conclusions of the judgment relating to English faculties and legislators. 

The NCCM and CCLA then additionally filed an enchantment, saying the legislation banning spiritual symbols in lots of public sector jobs is unconstitutional and ought to be struck down.

An older man with a briefcase.
Constitutional lawyer Julius Gray on the steps of the Quebec Court docket of Enchantment in Montreal. (Ivanoh Demers/Radio-Canada)

However clause within the highlight

The hearings, scheduled for 4 days this week, will have a look at completely different features of the legislation. First up Monday was using the however clause.

Attorneys for a number of teams against the legislation argued utilizing the however clause in a sweeping vogue to stop courtroom challenges was going too far.

Theodore Goloff, lawyer for the Lord Studying Society, which represents Jewish jurists, instructed the courtroom the however clause was not a “free go” to allow governments to droop rights with out debate.

“Invoice 21 creates a regime that’s extralegal, that’s, not topic to the rule of legislation,” Goloff instructed the panel of three judges.

“The invoice creates an exception to the precept that nothing and nobody could be above the legislation.  It locations the state itself above the legislation,” he mentioned.

Julius Gray, representing the Canadian Human Rights Fee and the Quebec Group Teams Community, argued that utilizing the however clause in a sweeping method goes “towards the spirit” of the Canadian Constitution of Rights and Freedoms.

Gray argued that the clause was designed for use in a “restricted, surgical and exact” vogue.

Fréderic Bédard, lawyer for the lecturers’ union Fédération autonome de l’enseignement, argued that the CAQ had drafted the legislation for populist political causes and that it has did not display an actual and pressing must droop folks’s constitutional rights.

Isabelle Brunet, lawyer for the Lawyer-Basic of Quebec, argued the however clause is nothing new and that the province was effectively inside its rights to invoke it.

Brunet mentioned the clause is a “safeguard of parliamentary independence” that offers the final phrase to legislators.

She mentioned the clause is an effective instance of how federalism is meant to work, permitting every province to protect its particular person identification.

However the workplace of federal Justice Minister David Lametti issued a press release Monday on his behalf which mentioned: “How a girl, or any particular person, expresses themselves and their spiritual beliefs in public and at work is a charter-protected proper.”

“I’m carefully following the problem to Invoice 21 that’s presently earlier than the Quebec Court docket of Enchantment, and have dedicated to intervening within the matter ought to it attain the Supreme Court docket of Canada.”

Opposing views

All through the hearings — which is able to final Monday via Thursday, after which resume on Nov. 16 — the Court docket of Enchantment will hear from a number of events arguing to both abolish or beef up the legislation. 

Furheen Ahmed, a instructor at Westmount Excessive Faculty in Montreal, who wears a hijab, is hoping for the legislation to be struck down. 

“It is absurd,” she mentioned. “There is no proof of something unfavourable popping out of people within the classroom instructing carrying a kippah, carrying a turban, carrying a hijab.”

Greater than two years after Invoice 21 got here into impact, she mentioned she’s seen tales of people who’ve misplaced their jobs or who’ve chosen to pursue careers exterior of Quebec as a result of they’re unable to work within the public sector and put on the religions symbols that matter to them. 

Ahmed mentioned the problem is folks’s notion of faith, or sure religions, “and that notion is being thrown onto my freedom, my selections. [It’s] not honest.”

On the opposite finish of the spectrum, a pro-secular group, the Mouvement laïque québécois (MLQ), will argue not solely that Invoice 21 does not trample minority rights however that it does not go far sufficient in defending the rights of fogeys to have their kids obtain a secular training. 

“The faculties usually are not there to make sure the liberty of non secular observe of the lecturers. The varsity is there to educate college students, to make sure their freedom of faith, to make sure the equality of all college students’ religions,” mentioned Daniel Baril, president of the MLQ, in an interview with CBC Information. 

Baril mentioned his group would ideally need the spiritual symbols ban to use to all workers in faculties — not simply lecturers — in addition to in CEGEPs and early childcare centres. 

Laura Berger, a workers lawyer with the CCLA, mentioned her staff will probably be discovering progressive methods to skirt across the however clause to argue towards forcing folks to “select between their religion and their careers.” 

She mentioned Quebec must strike a steadiness between the correct to a secular province and people’ rights. 

“We firmly consider that freedom of faith means pushing faith out of the state. It does not imply pushing folks out of workplaces,” she mentioned. 

Berger mentioned the Enchantment Court docket can take between six and 18 months to situation a ruling. 

It is extensively anticipated the legislation will finally be challenged within the Supreme Court docket of Canada.