Bill 21: Quebec Court of Appeal rules secularism law is constitutional

MONTREAL — The Quebec Court of Appeal ruled that Bill 21 is constitutional, the province’s secularism law. The almost 300 page judgement came down on Thursday afternoon and is being considered a major victory for the Legault government – and a win down what was called the “entire line.”

The decision overturned a lower court ruling that exempted English school boards from the law.

The province’s highest court upheld much of a 2021 Quebec Superior Court ruling, which said the law’s use of the notwithstanding clause overrode infringements of fundamental rights.

The 2019 law declares the province is a secular state and includes a provision prohibiting public sector workers in positions of authority — including teachers, judges, and police officers — from wearing religious symbols on the job.

While Bill 21 made pre-emptive use of the Charter of Rights and Freedoms’ notwithstanding clause, shielding legislation from court challenges over violations of fundamental rights, the court found the clause does not override minority language rights.

“We’re obviously disappointed that this court did not judge in our favour. We obviously were confident that they would. That’s why we launched the court challenge to begin with,” said Joe Ortona, Chair of the English Montreal School Board (EMSB), after the decision was announced. He says EMSB’s lawyers will look this all over and they’ll take their time to better understand the judgment and not make a “decision on emotions” on if they fight this all the way to the Supreme Court.

Guillaume Rousseau, lawyer for Le Mouvement laïque québécois said, “it’s a great victory for Quebec. It’s a great victory for all provinces, and it, especially a victory for Quebec…For our English speaking friends, because they were denied under the ruling of the superior court, the right to secular public services.

“Today is a great victory for our English-speaking citizen, for our English-speaking friends, because they were denied under the ruling of the Superior Court the right to secular public services in English-speaking school, in Anglophone school. Now the Court of Appeal is saying the Bill 21 and the right to have secular public services will apply to Anglophone school.”

“The Court of Appeal is explicitly saying that this is about democracy, that the notwithstanding clause is not something that violates rights, it’s not something that goes against democracy, it’s part of our democracy, and it’s up to the elected official to decide. And if some in the civil society disagree, they can do as they did in Ontario and go and do demonstration and so on, but that’s not the role of the judges to go against the will of the National Assembly when the National Assembly used the notwithstanding clause.

Groups that oppose Bill 21 appealed the Superior Court ruling, as did the Quebec government, which argued that laws adopted by the legislature must apply to all of Quebec.

WATCH: Bill 21 What’s next for the challenge of Quebec’s secularism law?

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Premier Legault cites ‘victory’

Quebec Premier François Legault reacting to the news at 4:15 p.m. with a press conference in Montreal, saying he will always fight for this province in order to have the freedom for ‘the nation’ to make its own choices.

“With Bill 21, we have clearly affirmed an important value for Quebecers; secularism,” he said in French. “It’s important to say that the Quebec government will continue to use the notwithstanding clause for as long as it takes for Canada to recognize the societal choices of the Quebec nation, which is non-negotiable.”

NCCM: ‘deeply disappointed’

The earlier Superior Court ruling acknowledged the secularism law violates the rights of Muslim women and has a “cruel” and dehumanizing effect on those who wear religious symbols and can’t seek work in the public service without compromising their beliefs.

The Quebec government has repeatedly argued that Bill 21 is moderate and supported by a majority of Quebecers. The law included a grandfather clause exempting those who wore religious symbols and were employed before the bill was tabled, as long as they didn’t change jobs.

However, the law sparked outrage among religious minorities across Canada, and critics argued it targets racialized minorities who choose to practise their faith. Several groups, including the Canadian Civil Liberties Association and the National Council of Canadian Muslims (NCCM), took the province to court.

NCCM on Thursday said they would not be giving interviews, but are “deeply disappointed.”

In a statement on social media, the group vowed to keep fighting what it called a “discriminatory” law. Adding “this is not the end.”

EMSB: ‘Teachers should have the right to wear whatever they want’

While English school boards won the initial challenge, they haven’t been able to hire people who wear religious symbols since the ruling, pending the conclusion of the appeal process.

“My heart goes out to them. It’s, you know, part of the reason why we launched this challenge to begin with. We think that teachers should have the right to wear whatever they want,” said Ortona. “That we should have the right to hire teachers without, you know, an arbitrary criteria like what they choose to wear that has absolutely no bearing on the quality of education that the children receive. And I’ve said this over and over again. No student and no parents have ever complained about a teacher in the class wearing a religious symbol.”

“What I’m going to say is that we have to digest this non-judgment,” said lawyer Genviève Grey, who represents the CHRC and the QCGN. “We’re interveners, so I don’t think we can specifically appeal, but we will hope to intervene as well. So we’re hoping to take this to the Supreme Court. We will have to do a careful review to see what we can effectively take to the Supreme Court.”

“It’s a heart-wrenching day. The feeling is that people have suffered for five years and that suffering continues. And the Court of Appeal has not provided the kind of relief that we were hoping for,” said Noa Mendelsohn Aviv, Executive Director and General Counsel of the Canadian Civil Liberties Association (CCLA).

“It’s the fact that aspects of the law were not upheld at the lower court and now will be upheld is yet another blow to the individuals who are affected, to the communities who are affected and to the many, many, many people in this province who have voiced their opposition to Bill 21, because of its violation of universal values of human rights, of equality and justice and freedom of religion and freedom of gender.”

Trudeau Liberals say they’ll review decision 

Justin Trudeau’s Liberal government previously announced its intention to participate in any Supreme Court challenge to Bill 21, which Premier François Legault said showed a “lack of respect for Quebecers.”

Justice Minister of Canada Arif Virani says the next step is for the federal government to review the decision and reflect on it.

“On matters of national importance I and our government firmly believe that government of Canada has a role to play, particularly in the context where we are dealing with important,” Virani said at a press conference. “Charter rights like the rights of freedom of religion and equality rights. Equality rights
protect equality based on various categories such as sex, nationality, religion, race, etc. We will be there to defend our vision of the notwithstanding clause which as we’ve said many times, that we believe that this should be a tool of last resort not a tool of first resort.”

The Legault government announced this month its plans to renew the application of the notwithstanding clause to the law for another five years. The Charter of Rights and Freedoms stipulates that the override clause can be applied to legislation for up to five years, after which time it needs to be renewed by the legislature.

-With files from Sidhartha Banerjee, The Canadian Press