Quebec’s secularism law appears to ban religious wear for all public servants but it hurts Muslim women the most - will that fact be its Achilles' heel?
Quebec’s Bill 21 became a law on June 16, 2019. It is a secularism law that “bans apparent religious signs for all public servants in a position of authority, including judges, bus drivers and teachers,” AFP reported.
According to Canadian Civil Liberties Association (CCLA), those affected: "Include teachers, judges, police officers, certain lawyers as well as students, children and youth who aspire towards those careers.”
CCLA also noted: “[The law] disproportionately impacts people who may already be marginalised, including Muslim women who wear head scarves as part of their religious faith and identity, Sikhs who wear a turban, and Orthodox Jewish men who wear a kippa.”
Referring to Bill 21, “An Act Respecting the Laicity of the State”, Paul Wells wrote in Macleans magazine; “[It is] one of the first laws passed by the government of Quebec premier Francois Legault, the founding leader of the popular, centre-right Coalition Action Democratique (CAQ) party.”
While the law has found popular support in Quebec, it is also controversial, and challengers arose to fight it. CCLA, along with The National Council of Canadian Muslims (NCCM) say the bill harms minority groups in Quebec and limits employment opportunities, Global News reported.
The efforts of these organisations did not bring the expected result in July when they sought an immediate stay of some of the law’s provisions and a Superior Court judge rejected their demands. “Justice Michel Yergeau ruled that Bill 21 would continue to apply in full until a challenge of the law could be heard on its merits, saying the applicants did not demonstrate harm warranting a stay,” Global News wrote.
CCLA and NCCM appealed Yergeau’s decision and the hearing was held on Tuesday. The applicants argued that Bill 21 primarily hurts Muslim women and as such is a “direct violation of the sexual equality guaranteed in the Canadian Charter of Rights and Freedoms under Section 28”.
According to the Canadian Press: “Lawyer Olga Redko argued Bill 21 violates the sexual equality guarantees in the Canadian Charter of Rights and Freedoms –– which are not shielded by the notwithstanding clause that the province has invoked to avoid court challenges.”
A notwithstanding clause is an announcement by lawmakers that they will ignore certain sections of the constitution provided they say it before it gets challenged. The National Post defines it as “a magical section of the Canadian constitution that allows provincial governments to simply ignore a key section of the constitution if they don’t like it”. In the case of Bill 21, Premier Legault has said the notwithstanding clause was put in place to avoid lengthy lawsuits.
In his July ruling, because of the notwithstanding clause in the case of Bill 21, Justice Yergeau noted that the plaintiffs were “severely limited” in their stay application. The notwithstanding clause “prevents citizens from violating parts of the charter that protects fundamental rights and freedoms,” the Canadian Press reported.
However, lawyer Redko has found a weak spot in Bill 21’s armour. Section 28 of the charter, which promises equality to men and women, is, according to her argument, not covered by the notwithstanding clause.
According to Redko, a lot has changed since the law went into effect. She said: “So far, the only people whose rights this law has infringed are women." Redko, according to the Canadian Press, has submitted affidavits written by women who “can’t find work or have had to leave the province".
Bill 21 has a grandfather clause where if a Muslim woman wearing a hijab has started teaching before it was first proposed in March 2019, she can continue teaching whether or not she wears the hijab. However, if she changes schools her freedom to wear the hijab to work is no longer protected. Likewise, a Muslim woman who has not been teaching before the law was first proposed doesn’t have the grandfather clause protection.
Justice Department lawyer Eric Cantin, arguing on behalf of the Quebec government, said even if people are suffering harm due to a law, that doesn't give judges the right to suspend the legislation, the Canadian Press said. For a court to issue a stay, Cantin said, the irreparable harm caused to people has to be "clear, flagrant ... it has to jump out in front of you". This case doesn't meet that standard, he said.
Chief Justice Nicole Duval Hesler and her two colleagues are to deliberate over the case and issue their ruling in the coming weeks or months.