Leslie Rosenblood

On April 20, 2021, the Quebec Superior Court released its ruling on the constitutionality of Bill 21, Quebec’s “secularism law,” which (among other things) bans the wearing of religious symbols (such as hijabs, yarmulkes, and turbans) for many government employees including lawyers, judges, teachers, and police officers.

The ruling largely upholds the provisions of Bill 21, with two notable exceptions: The bill would be “inoperative” for English school boards in the province, and restrictions would not apply to sitting Members of the National Assembly.

In his 240-page decision, Justice Marc-Andre Blanchard found “the evidence undoubtedly shows that the effects of Law 21 will be felt negatively above all by Muslim women.” Those targeted by the law are “faced with the following dilemma: Either they act according to their […] beliefs, or they work in the profession of their choice. It is easy to understand that this is a cruel consequence which dehumanizes those targeted.”

The law imposes significant costs (in terms of rights and freedoms) with a questionable justification: “the denial by Bill 21 of the rights guaranteed by the Charter has severe consequences for the persons concerned. […] On the other hand, the beneficial effects appear at least tenuous.” The judge had harsh words for the National Assembly: “The use by the legislature of the notwithstanding clauses appears excessive, because it is too broad, although legally unassailable in the current state of the law.” The government displayed an “indifference toward the rights and liberties of those affected,” he wrote.

When applied, the notwithstanding clause exempts legislative compliance with Charter sections 2 (“fundamental freedoms” including freedom of religion and expression) and 7 through 15 (which enumerate legal and equality rights). However, the notwithstanding clause provides no protection to challenges under section 23 (minority language educational rights).

Most reactions to the judgment were negative. Supporters of Bill 21 were disappointed that the ruling carved out exceptions, while opponents were upset that the bill will continue to apply in most of the province. Quebec Justice Minister Simon Jolin-Barrette seemed to capture the common sentiment: “Quebec’s laws have to apply to everyone on Quebec’s territory.” Or as Premier François Legault put it, “I don’t understand why the judge said anglophones in English school boards can have different values than the other Quebecers.” On the other hand, the English Montreal School Board said it was “elated” by the decision.

Quebec has announced its intention to appeal. The case will almost certainly be heard eventually by the Supreme Court of Canada. In the meantime, however, Bill 21 remains in effect for most of the province’s teachers, police officers, and other government employees in a position of authority.

Notes:

• “Secularism” has several definitions, and confusion can result if people do not have a common understanding of how it is being used. CFIC supports political secularism, defined as government neutrality in matters of religion; that is, the state should neither support nor suppress religious expression.
• The author is a native English speaker. The ruling is written in French, and an English translation was not available at the time of publication. Quotations from the ruling are sourced from the English-language media articles linked to within the body of the essay.