Quebec Appeal Court rules secularism law is constitutional, English schools rebuffed

MONTREAL — The Quebec Court of Appeal ruled Thursday that the province’s secularism law is constitutional and a lower court was wrong to exempt English school boards from the law, known as Bill 21.

In a unanimous decision, the province’s highest court upheld the law that prohibits public sector workers in positions of authority — including teachers, judges, and police officers — from wearing religious symbols on the job.

The victory for the Quebec government hinged on its pre-emptive use of the Charter’s notwithstanding clause, which shields legislation from most court challenges over violations of fundamental rights. An April 2021 Quebec Superior Court ruling had left the law largely intact, despite what the judge described as “serious and negative” impacts on people who wear religious symbols.

“The court has confirmed Quebec’s right to make its own decisions,” Premier François Legault told reporters in Montreal Thursday. “Secularism is a collective choice that is part of our history, in continuity with the Quiet Revolution. Secularism is a principle that unites us as a nation in Quebec.”

Legault said the government will continue to use the notwithstanding clause for “as long as it is necessary for Canada to recognize the societal choice of the Quebec nation” adding that “it’s non-negotiable.” The government recently tabled legislation to renew the application of the clause to Bill 21 for another five years. 

The lower court had exempted English school boards from certain provisions of the law on the basis that minority language education rights — which aren’t covered by the Charter’s notwithstanding clause — weren’t respected. But the three-judge appeal panel rejected that analysis. The only aspect of Bill 21 that the Appeal Court found to be a violation of the Charter was its ban on face coverings for members of the provincial legislature, affirming the lower court’s finding.

The English Montreal School Board said it will take time to review the decision before deciding on an appeal to the Supreme Court of Canada. “We’re obviously disappointed that this court did not judge in our favour,” said Joe Ortona, the board’s chairman.

The Quebec government has repeatedly argued that Bill 21 is moderate and supported by a majority of Quebecers, while opponents say it discriminates against racialized minorities who choose to practise their faith.

The Appeal Court found the lawmakers’ intent was clear, and there was no hidden agenda to discriminate. “At no point did anyone maintain that the purpose of the bill was to punish, penalize or stigmatize persons whose religious beliefs would be subject to constraints by reason of the affirmation of state laicity through the measures proposed here,” the ruling reads.

On the decision to invoke the notwithstanding clause, which is Section 33 in the Charter of Rights and Freedom, the court said that remains a matter for parliamentary debate. “Even if one were to think it politically regrettable that the framers incorporated Section 33 into the Canadian Charter … the fact remains that it is not the role of the courts to seal the gaps, if any, in a constitutional (or legislative) choice,” the judges write.

The ruling points to the power of the electorate when it comes to use of the clause, noting that public backlash forced the Ontario government to reverse an override clause on a bill that imposed a contract on Ontario education workers in 2022.

Reaction was swift from all sides.

“It’s really a great victory for Quebec’s ability to make its choices,” said Guillaume Rousseau, a lawyer for Mouvement laïque québécois, which opposes teachers wearing religious symbols.

The Canadian Civil Liberties Association, however, called the ruling “a painful setback.” It is reviewing the decision and expects to take the ruling to Canada’s highest court.

“We have said from the very beginning we are going to fight it all the way. We’re going to fight it with the public, we’re going to fight it in the courts,” said Noa Mendelsohn Aviv, executive director of the CCLA. “I believe that there will be grounds and I believe that we will be seeking leave to appeal.”

The National Council of Canadian Muslims also expressed disappointment, but vowed to keep fighting, saying it would have more to say after reviewing the judgment with its lawyers.

Liberal Justice Minister Arif Virani said in a statement the federal government will be part of any appeal to the country’s highest court, calling the case a national issue touching on fundamental freedoms and rights. He said the federal government has serious concerns with the pre-emptive use of the override clause.

“The first word should not be the last in the dialogue between legislatures and the courts,” Virani said. “Every Canadian, no matter their province or territory of residence, should feel confident that the federal government recognizes and respects their rights and freedoms.”

This report by The Canadian Press was first published Feb. 29, 2024.

Sidhartha Banerjee and Jacob Serebrin, The Canadian Press