This week the Quebec Superior Court upheld Bill 21, the 2019 law that prohibits government workers from wearing certain types of religious symbols.
The francophone province has been grappling with the law and its implications for a few years now. Supporters say it’s an important step in preserving the religious neutrality of the provincial government, while its critics point out that it unfairly targets people from marginalized religious and cultural groups.
The government has acknowledged that the law’s impact weighs much more heavily on some people than others, even to the point of violating the fundamental rights of religious minorities. They passed the bill anyway by invoking the notwithstanding clause, which allows a government body to temporarily ignore parts of the Charter of Rights and Freedoms in service of a greater good.
Justice Marc-André Blanchard agreed with all of that in his opinion: Yes, the law disproportionately impacts marginalized people (particularly Muslim women), and yes, that’s a-okay under the current legal framework.
But there are exceptions.
One such exception governs the provincial legislature. Blanchard noted that there could be no such restriction on Members of the National Assembly (MNAs) without violating citizens’ Charter rights to freely elect their legislators, since the law as written would prevent a democratically-elected candidate from sitting in the Assembly. Says Blanchard:
Insofar as the Tribunal concludes that the objective of Law 21 seems legitimate, a legislative position which, by its effect, constitutes an impediment to candidacy by a person who covers their face for whatever reason they find appropriate, remains an extreme measure for which one struggles to imagine a reasonable justification.
The other key exception applies to employees of English school boards. Blanchard argued that the ban on religious symbols cannot be applied in English-language schools without violating minority language rights protections outlined in the Charter. Those particular rights are not subject to the notwithstanding clause. As Montreal lawyer Stephane Beaulac explained to CTV News:
[The courts] basically said that deciding whether or not teachers in the English education system can or cannot wear a religious sign is something that is the prerogative, is under the power of the English school board. There’s asymmetrical protection, meaning that there’s protection for English school boards because of minority rights that simply cannot apply to French school boards.
These exemptions can be made because certain Charter rights cannot legally be overridden by the notwithstanding clause, including language rights and the right to democratic elections. Other fundamental rights, though — freedoms of conscience, religion, belief, association, and peaceful assembly, for instance — can be suspended if necessity demands it.
One can imagine legitimately suspending the right to freedom of assembly, for instance, in the case of a global pandemic. It’s harder to make the case for suspending somebody’s freedom to practice their religion because the faith mandates a headdress the government doesn’t care for.
Indeed, it’s hard to read Blanchard’s opinion as particularly favorable towards the law. His judgment notes the many ways it will harm those impacted:
There is no doubt that in this case, Law 21’s denial of the rights guaranteed by the Charter has severe consequences for the persons concerned. Not only do these people feel ostracized and partially excluded from the Quebec public service, but in addition some see their dreems become impossible while others find themselves stuck in their positions without possibility of advancement or mobility. In addition, Law 21 also sends the message to minority students wearing religious symbols that they must occupy a different place in society and that clearly the way of public education at the level of preschool, primary, and secondary school does not exist for them. These are very serious deleterious effects. On the other hand, the beneficial affects appear tenuous, to say the least.
The best thing Blanchard seems able to say about the ban on religious symbols is that it doesn’t technically break the law. There’s really no better way to sum it up than this headline from the Montreal Gazette:
Religious symbols law is cruel, but notwithstanding clause makes it legal
It turns out that’s not enough to please Quebec premier François Legault. While he has described parts of the decision as “good news” and “a victory for Quebecers,” he’s dismayed overall, and his government already has plans to appeal the parts of the decision that carve out exceptions for anybody at all:
I am disappointed in this ruling. I find it illogical. It’s as if secularism and values can be applied differently to anglophones than francophones. I don’t understand why the judge said anglophones in English school boards can have different values than the other Quebecers. I think we cannot divide Quebec in two. We need one Quebec, with one set of common values.
It’s a fool’s errand to try and ensure that every single person in Quebec shares the same set of values, but the government clearly means to try. We haven’t seen the last of the controversy over Law 21, and to be frank, it wouldn’t be much of a surprise to see the case eventually make its way to the Supreme Court of Canada.
In the meantime, if there’s one thing the past year of pandemic living has taught us (and for some folks, that’s debatable), it’s that the world doesn’t come to an end if somebody goes out of their house with a face covering.
(Image via Shutterstock. Thanks to Brian for the link)