The Quebec Court of Appeal held hearing on Bill 21: Quebec’s secularism law on Monday, November 7, 2022. The law which came into effect in the summer of 2019. It bans public sector workers (who are considered authority figures) from wearing any religious symbols at their place of work. Therefore, it forces people to choose between their faith and their career, and supporting themselves and/or their families, therefore the constitutionality of the law is being contested.
In April 2021, Superior Court Judge Marc-André Blanchard J.C.S., upheld most of the law. However, he struck down provisions with respect to the English-language school boards as well as a ban on members of the National Assembly from wearing face coverings. This decision is now being challenged by the Quebec government and groups opposing the law.
The government’s pre-emptive use of the “notwithstanding clause” is being argued by parties challenging Bill 21.
The notwithstanding clause, which is Section 33 of the Canadian Charter of Rights and Freedoms, gives parliaments in Canada the power to override certain sections of the Charter when passing legislation to permit a breach of the charter. This is invoked for a five-year term and can be re-enacted, failing which it will no longer have any effect at the end of the term. The clause can only override Sections 2 and 7 to 15 of the Charter. These sections cover fundamental and equality rights. Section 33 prevents the legislation from being reviewed by the courts once it is invoked.
Therefore, the government’s use of the notwithstanding clause protects Bill 21 from being challenged as it violates the right of freedom of religion and freedom of expression. These fundamental rights violations are affecting people from all faiths. People who regularly wear religious symbols for example head scarfs, kippahs, tzitzit, crosses, turbans, and chunnis are particularly affected by this law.
The Superior Court’s decision that is being challenged ruled that the law was legal and does not violate the constitution. However, the judge did acknowledge the negative impacts it has on Muslim women and its violation of their fundamental right to cover their head. He ruled that the law was allowed to remain in effect due to the aforementioned notwithstanding clause (acknowledgement that it breaches rights and freedoms but that it is justified).
The Quebec government is appealing the part of the ruling that struck down the part of the law that applied to English school boards as well as the ban on face coverings for members of the provincial legislature. The government has also argued that the law is supported by the majority of Quebecers.
However, this law affects minority groups and as explained by a lawyer representing the Québec Community Groups Network, an anglophone organization; “It is not up to the majority to dictate the definition of the culture of the minority”.
The Canadian Civil Liberties Association has stated that they will go to the Supreme Court of Canada if the appeal is unsuccessful.
The Quebec Court of Appeal must decide on a contradiction in the Charter in order to determine whether or not Bill 21 is valid.
Section 15 of the Charter prohibits discrimination based on sex and being that it is one of the sections that Section 33 may derogate from, the government’s use of the notwithstanding clause unfortunately overrides this breach of rights and freedoms. However, Section 28 of the Charter guarantees gender equality, and it cannot be stifled by the notwithstanding clause. It is being argued that because the majority of teachers are women, that they are more affected by this law.
The hearings are expected to last ten days.
https://montrealgazette.com/news/bill-21-appeal-provokes-debate-on-charter-of-rights-contradiction
