After a Quebec Superior Court judge rendered a decision upholding most of the Legault government’s religious symbols ban for public employees, a new chapter in the legal battle over Bill 21 is set to begin.
Coalition Inclusion Quebec, a group that backed hijab-wearing teachers during the Superior Court hearings, has announced it will challenge the ruling at the Quebec Court of Appeal. The group had hoped Judge Marc-André Blanchard would strike down the entire law banning public workers from wearing religious symbols on the job, and will continue to pursue that end.
“When we launched our case we knew we were embarking on a long legal journey that is likely to end up in the Supreme Court,” said Rev. Diane Rollert, president of Coalition Inclusion Quebec.
The group stood behind Bouchera Chelbi at the hearings, a Muslim, hijab-wearing woman who has been teaching English at Montreal French schools for over a decade.
She took the stand at the Quebec Superior Court hearings, arguing against Bill 21. With Blanchard’s 242-page ruling released Tuesday, religious symbols can be worn in the English system, but not the French.
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“I’m grandfathered, so I can still teach, but I cannot dream of any promotion,” she said.
Chelbi said she is happy for her colleagues who teach in English schools, as the judge rules the law does not apply to English institutions because it unjustifiably violates minority language education rights not covered by the Charter of Rights and Freedoms’ notwithstanding clause. However, she said she is saddened that teachers, mainly women, who wear religious symbols will not be able to get jobs or promotions. She cited the severe shortage of qualified teachers in French schools in Montreal.
“We have all those qualified people, qualified teachers, mostly women who are really qualified. I mean, they went through university and they have everything we need to fill positions that are empty. And yet we refuse to hire them because of a bill that didn’t prove itself to be necessary in our society. So that’s a bit frustrating,” Chelbi told Global News.
In the ruling, the judge criticizes the government’s decision to ban public employees from wearing religious symbols on the job.
He recognizes Bill 21 negates rights guaranteed by the charter and says “not only are people targeted by the law feeling ostracized from Quebec’s public sector, but some are seeing their dreams become impossible.”
He calls Quebec’s use of the notwithstanding clause to override the charter “excessive.”
“The court was clearly concerned by the stigma and the discrimination that was imposed by this bill, but felt that its hands were tied,” said Pearl Eliadis, a lawyer and a member of McGill University’s Max Bell School of Public Policy.
She says the ruling brought up fundamental questions about governments’ abilities to sidestep both the Quebec and Canada charters of rights and freedoms, as well as international law, using the notwithstanding clause.
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“It seems clear to me that the court was being deferential and very cautious in terms of respecting its place within the government structure,” she said, saying the Superior Court judge seemed to lay the groundwork for higher courts to delve into the case, as the court did not have the power to overturn Quebec’s use of the notwithstanding clause.
Coalition Inclusion Quebec says Blanchard paved the way for it to bring the case to the Quebec Court of Appeal.
“Even if he couldn’t strike the law down, he still laid out, ‘OK, here’s here’s what you bring to appeal,” said Rollert of Coalition Inclusion Quebec.
The group’s lead lawyer is already preparing for the appeal.
“We have various arguments that actually go around the notwithstanding clause, and so we’ll be making those arguments at the Court of Appeal, and we have arguments to defeat the application of the notwithstanding clause,” the lawyer, Azim Hussain, said.
When the case goes to the Court of Appeal, and likely the Supreme Court after that, the very question of how much power a government has will be at stake.
“The decision touches on virtually every aspect of the Canadian political landscape as it affects fundamental human rights. I cannot think that this will not go to the Supreme Court of Canada,” said Eliadis.
On Tuesday, Quebec’s minister responsible for laicity, Simon Jolin-Barette, intends to “defend the bill as we tabled it.” The government plans to appeal the judge’s decision to exempt English school boards and national assembly members from the religious symbols ban.
Though it may take years, Chelbi said she plans to see her Bill 21 challenge through to the end.
