Nov. 4, 2020
By JANICE ARNOLD
MONTREAL—The long awaited court challenge to Quebec’s controversial secularism law got underway in Montreal’s Palais de Justice Nov. 2 with a young Muslim woman who wears a hijab testifying that her plans to teach in the public system have been dashed, making her feel excluded and inferior.
Bill 21, which became law in June 2019, prohibits public employees deemed to represent state authority from displaying religious symbols while on the job. These include police officers, judges, Crown prosecutors and other government lawyers, prison guards and – most widely questioned – teachers and principals in public elementary and high schools.
Ichrak Nourel Hak, the first witness at the trial, which is expected to last several weeks, had just graduated from the University of Montreal and was hoping to begin her career in a public school when the legislation came into effect. She is now teaching in the private sector, which is not subject to the law. That includes Jewish day schools.
The trial, held in Quebec Superior Court, combines four separate lawsuits against Bill 21, officially entitled “An Act Respecting the Laicity of the State.”
It was high on the agenda of the Coalition Avenir Québec which was elected with a solid majority in October 2018. The new government quickly shepherded it through the legislative process, despite sustained outcry from minority and human rights groups, legal experts, and the opposition Liberal Party.
Premier Francois Legault described the bill as a “moderate” resolution of the acrimonious debate over “reasonable accommodation” of religious practices in the public sphere. Polls have shown that a majority of Quebecers agree with him.
All four lawsuits seek the law’s annulment on constitutional grounds but will offer differing legal arguments on why it violates fundamental rights. These have to be complex because the law includes the constitutional notwithstanding clause, which allows the government to override guarantees of religious liberty and equality, including between men and women, under the Canadian Charter of Rights and Freedoms.
All of the complainants charge that the law is discriminatory against those whose religious belief requires them to wear such symbols. In practical terms, the greatest impact is on Muslim women.
The law does not specifically name what constitutes a religious symbol but the minister responsible has said it should be commonly understood to mean headwear or jewelry. 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.
Hak is the lead plaintiff for the first lawsuit, launched by the National Council of Canadian Muslims and Canadian Civil Liberties Union (CCLU). The others were filed by the English Montreal School Board; the Fédération autonome de l’enseignement, a teachers’ union; and three teachers – two Muslim, one Roman Catholic who wear religious symbols – who are backed by an interfaith and intercultural coalition.
Gregory Bordan, lawyer for the three teachers and an observant Jew, will argue that the relevant rights were entrenched long before the 1982 Canadian constitution, back even to Confederation in 1867.
Whatever the decision, experts believe it will be appealed and, eventually, taken to the Supreme Court of Canada – a process that could take years.
Last year, a Superior Court judge rejected a request by the Muslim council and CCLU for an injunction against parts of the law with the most direct affect on individuals until their case goes to trial. That decision was upheld by the Quebec Court of Appeal in December.
In the current trial, the court did grant intervener status to a pro-secularist group that believes the law does not go far enough.
In the debate before the federal election last October, Prime Minister Justin Trudeau said Ottawa might intervene in the court challenge, but that has not happened.
During public hearings in the spring of 2019, the Lord Reading Law Society vigorously opposed the bill saying it would create a “state religion” that imposes neutrality and deprive individuals of their fundamental rights and freedoms.
This association of Jewish lawyers believes the bill contravenes the 1948 Universal Declaration of Human Rights and 1976 International Covenant on Civil and Political Rights, to which Canada is a party.
The Centre for Israel and Jewish Affairs-Quebec termed the bill “a disproportionate attack” on basic rights, including equality of opportunity for employment, and urged that, at the minimum, teachers not be subject to it.
It also found the bill’s wording ambiguous, leaving too much discretion in the hands of administrators of public institutions in how it is applied.
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.