Leslie Rosenblood
On November 2, the Quebec Superior Court began hearing arguments for and against the constitutionality of Bill 21, which (among other things) forbids the wearing of religious symbols for many civil servants in the province. (See here for a brief history of the legal challenge of the bill to date, and here for CFIC’s official stance against Bill 21.)
Plaintiffs opened trial with the claim that a headscarf does not foist a particular worldview on students, any more than a woman wearing high heels is implicitly imposing that choice upon others. The court heard from Muslim and Sikh teachers who testified that the law has negatively impacted their ability to find work, and also that “Bill 21 may lead to people who are Jewish, Sikh and Muslim feeling increasingly stigmatized and could ultimately hurt social cohesion.”
More broadly, the plaintiff’s legal strategy will argue that Bill 21 violates two sections of the charter that are not covered by the notwithstanding clause: Section 23, which protects minority language education, and Section 28, a little used gender-equality provision. The Mouvement laïque québécois and CFIC generally have similar views on secularism. The MLQ was the lead plaintiff in the case that overturned prayers before municipal government meetings in Canada. The MLQ is back in court this month as an intervener arguing in favour of Bill 21.
Many Muslim parents testified in favour of the religious symbols ban, claiming the hijab conveys a pernicious sexist message. In the words of one witness, “Teachers must be neutral because children are impressionable.” Others argued that hijabs are not a positive or even neutral symbol. They are forced upon women in some countries, with women who are caught not wearing one risking their jobs in Algeria or facing imprisonment in Iran. The presiding judge seemed unconvinced by this line of reasoning, asking how a teacher wearing a religious symbol violated the freedom of conscience rights of others.
A defense witness argued that schools exist for children, and that their rights take precedence over those of teachers. Quebec’s Attorney General has filed a 155-page document outlining the government’s defence of Bill 21.
The trial is ongoing, and a decision is not expected until 2021. Whatever the verdict and reasoning, the ruling is almost certain to be appealed, and it is likely that the constitutionality of Bill 21 will ultimately be decided by the Supreme Court of Canada.