MONTREAL—With consumer products, there is often a disclaimer to protect the manufacturer from blame. I was reminded of this when reading the recent Quebec Court of Appeal judgment on Bill 21, the “Act Respecting the Laicity of the State.” The legislation, passed in 2019, forbids people in authority—such as teachers, police, and judges—from wearing clothing (a hijab, turban, or kippa) with a religious orientation.

The judgment begins: “One can certainly have many different views about the Act, whether from a political, sociological or moral perspective. The Court’s judgment, however, will evidently consider only the legal aspect of the debate. The Court will … examine the legality of the Act, and it is not ruling on the wisdom of enacting it.” In other words, a cop-out.

Quebec Superior Court Judge Marc-André Blanchard ruled on the law in 2021. It took three years for Appeal Court judges Manon Savard, Yves-Marie Morrissette, and Marie-France Bich to produce a 300-page decision failing to judge the morality of a clearly discriminatory law.

By contrast, Blanchard ruled Bill 21 violated freedom of religion, that it “sterilizes” the idea, and should not be tolerated. But because the Legault government invoked the notwithstanding clause of the Quebec and Canadian Charters of Rights, his hands were tied. According to Montreal lawyer Michael Bergman, Blanchard was “extraordinarily direct and critical of the law, in a way rarely seen in Canada.”  

The Appeal Court judges, by comparison, showed a lamentable lack of courage. There was hope they might challenge the constraints of the notwithstanding clause. Instead, they ruled Bill 21 can openly discriminate against practising Muslims, Jews, Sikhs, or even Christians. Bergman said: “It could be a law discriminating against people with red hair. For the court, the nature of the law doesn’t matter: once the notwithstanding clause is invoked, Parliament or legislatures can do anything they please.”

To add insult to injury, Quebec Premier François Legault called the decision “a great victory for the Quebec nation,” adding he will use the notwithstanding clause “as long as necessary for Canada to recognize the social choices of the Quebec nation. It’s non-negotiable.”

The judgment gets worse. To begin with, the judges refused to acknowledge constitutional conventions, blithely rejecting “the unwritten principles of the Constitution, the constitutional architecture, [and] any pre-Confederation law or principle having constitutional value.”

They also say Section 28, protecting women’s rights, does not apply. This goes completely against the promise of 1981, when Pierre Trudeau government cabinet ministers Monique Bégin and Judy Erola rallied women across the country to lobby Parliament and provincial and territorial legislatures to ensure women’s rights were not subject to the notwithstanding clause. The Appeal Court judges, two of whom are women, said it “does not create a standalone right to sexual equality. It serves an interpretative purpose.” This is a blatant insult to the women of 1981 who fought so hard for equal rights.

Finally, they overturned Blanchard’s judgment that minority education rights permitted English school boards to manage their own affairs and hire hijab-wearing women. In fact, two Muslim teachers appeared before the Appeal Court, to no avail. English Montreal School Board chairman Joe Ortona said: “My heart goes out to them. It’s part of the reason we launched this challenge … we think teachers should have the right to wear whatever they want.”

The appeal judges ignored several precedents on Section 23, relating to minority school boards, and Blanchard’s contention the anglophone community has a history and values making it distinct within Quebec. Blanchard wrote in 2021 “the English-language school boards and their teachers or principals place particular emphasis on the recognition and celebration of ethnic and religious diversity.” This was overturned.

The judges also failed to take into account how laws are interpreted by the average citizen. When I was in a restaurant in Montebello in 2020, someone nearby snidely suggested another patron wearing a turban would be prohibited from doing so in the future. That was nonsense, but people often misinterpret government sanctions as being a free-for-all on rights. I believe this decision will encourage bigots.

This judgement must be appealed to the Supreme Court, as it makes the protections in the Charter meaningless. One can hope the Supreme Court will show more courage than the Quebec Appeal Court did.

Andrew Caddell is retired from Global Affairs Canada, where he was a senior policy adviser. He previously worked as an adviser to Liberal governments. He is a town councillor in Kamouraska, Que. He can be reached at pipson52@hotmail.com.

The Hill Times

 

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