Supreme Court hears arguments against Quebec's Bill 21 secularism law

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Stephen Rukavina

The hearing is now underway.

Perri Ravon, the lawyer for the English Montreal School Board, is the first lawyer presenting to the court.

She's arguing that Bill 21 infringes on constitutional minority language rights of the board, which she argues are not covered by the notwithstanding clause.

"Bill 21 interferes with the English language community's cultural concerns," Ravon said.

Some of the judges are challenging her on this, suggesting that the province should have the right to set hiring practices for teachers.

In the original Superior Court of Quebec decision, the judge agreed with the EMSB's arguments and granted the board an exception to Bill 21, but the Quebec Court of Appeal quashed that exception.

Mandana Javan, a citizen who has been vocal in support of Bill 21, was the last to speak at the scrum.

She said the law is important to protect against "Islamism" like she sees in her home country of Iran. She worried about religious indoctrination in the school system here in Canada.

Javan pointed out that her and many other Muslim women do support secularism.

She argued that the reality of Christian, Jewish and Sikh Quebecers is different than for Muslims.

The law being struck down would mean a "big price for our kids," who she said could be forced by their families and Muslim teachers to follow strict Islamic rules.

Howard Sapers, executive director of the Canadian Civil Liberties Association which is intervening in the case, said Bill 21 may have been sold as benign legislation, but since its passing it has resulted in "clear and well-documented discrimination."

He said the law excludes Quebecers who practise particular religions — mainly Muslims, Jews and Sikhs — from some jobs and from participating in public life.

"In a democracy, no one should be forced out of their profession because of their religion," he said.

Joe Ortona, chair of the English Montreal School Board which is an appellant in the case, told reporters that he and others in court are standing up for minorities that he says are being discriminated against by Bill 21.

"We're here because Muslim women are not second-class citizens," he said. "We're here because Muslim women who choose to teach should not have to choose, or be forced to choose, between her conscience and her career."

He said whether a teacher does or does not wear a religious symbol in the classroom has no impact on a child's education.

He said that until Bill 21 is struck down the fight against it must go on. 

"There can be no second-class citizens in the Canada and Quebec that we grew up to recognize," he said. 

Anaïs Bussières McNicoll spoke on behalf of the Canadian Civil Liberties Association.

"[Bill 21 is] a law that targets certain religions and excludes those who practise those religions from the public sector, particularly Muslim women," she said ahead of the hearings.

"Nobody should have to choose between their profession and their faith." 

She said this is not about Quebec versus the rest of Canada, as she said the provincial government is framing it.

Her group is here to "sound the alarm" against the risk of wider use of the notwithstanding clause, such as for a theoretical ban on abortion. (To be clear, the Quebec government has not proposed this.)

But she said its use here is normalizing the constitutional override for other governments as well.

Stephen Brown, the president of the National Council of Canadian Muslims, told reporters Monday morning that this case is the most consequential of our generation.

Speaking before the trial, Brown said the Supreme Court's forthcoming decision will determine whether Canada continues to be a liberal democracy, or something lesser.

Brown said that Quebec's decision to use the notwithstanding clause compromised the freedoms of Quebecers — and if it's allowed to stand, Canadians outside of the province could see their rights compromised when it comes to freedom of speech and religion. 

Brown said that because the laws that protect some Canadians are the same laws that protect all Canadians, this case is about whether politicians answer to Canadians or whether Canadians answer to their politicians.

Ichrak Nourel Hak, one of the teachers challenging Bill 21, spoke to reporters in the lobby of the Supreme Court before the hearing.

"This is not neutrality, this is legalized exclusion," she said of the bill.

"We aren't going anywhere.… We are not a problem to solve, nor an exception to tolerate. We are citizens."

Stephen Rukavina

The outcome of this case will affect not just Bill 21 but also newer secularism laws Quebec has drafted since Bill 21 was adopted.

Bill 94, adopted last fall, extends the religious symbols ban in schools to include all school staff.  

Dozens of lunch and after school monitors have either been laid off or left their jobs in recent months because of Bill 94.

It also extends the religious symbols ban to parents who volunteer in schools.

The CAQ is also working on an even stricter secularism law, Bill 9, which would extend the religious symbol ban to workers in publicly funded daycares. That law is being studied by a National Assembly committee and hasn't been adopted yet.

It is hard to keep track of all these laws sometimes!

Stephen Rukavina

Four days have been set aside for the hearings. This is really long for a Supreme Court case — most take a day or two at most.

The attorney general of Quebec will argue in favour of the law tomorrow, along with some other pro-secularism groups including Mouvement laïque québécois and Pour les droits des femmes du Québec

Dozens of groups from across the country will also be before the court as intervenors, including the government of Canada and six provinces that are arguing on both sides of the case. The court will hear from them Wednesday.

Main plaintiffs and respondents will each get a total of about three hours to make arguments.  Ottawa and the provinces get 15 minutes each. All other intervenors get five minutes.

Among other groups intervening: The Canadian Human Rights Commission, the Women's Legal Education and Action Fund, Amnesty International, the Canadian Labour Congress, the Office of the Commissioner of Official Languages of Canada, Egale Canada and many more

Stephen Rukavina

Since Bill 21 was enacted, other provinces including Alberta, Ontario and Saskatchewan have also tried pre-emptively invoking the notwithstanding clause, and Quebec has done it with several other pieces of legislation.

Among the provinces, Ontario, Alberta and Saskatchewan are siding with Quebec's interpretation of how the clause can be used. Manitoba and B.C., as well as the federal government, favour stricter limits on its use and are asking the Supreme Court to clarify how the clause can be used.

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