Bill 21: Appeal sparks debate over inherent Charter contradiction
The Court of Appeal has begun to hear arguments from opponents to the Act respecting the secularism of the State and of Quebec government prosecutors.
The Court of Appeal will have to decide on an intriguing contradiction contained in the Canadian Charter of Rights and Freedoms on the sidelines of its work on the validity of the Act respecting the secularism of the State (commonly known as Bill 21) which prohibits the wearing of religious symbols by state employees in positions of authority, including judges, police officers and teachers.
It's that Bill 21 relies on Section 33 of the Charter, the famous notwithstanding clause also known as the notwithstanding clause, to suspend freedom of religion for the wearing of religious symbols.< /p>
However, section 33 specifies that a legislature may derogate from certain sections of the Charter, in particular section 15, which prohibits any discrimination based on, among other things, sex. However, the notwithstanding clause does not circumvent section 28 of the Charter, which states that the rights and freedoms of the Charter are guaranteed equally to persons of both sexes.
This debate, which occupied a large part of Tuesday morning, was launched by Me Perri Ravon, who represents the English Montreal School Board. She argued that Bill 21 disproportionately disadvantages Muslim women in exercising their freedom of religion.
In support of this claim, she argued that freedom of information requests from some 300 public institutions had shown that the constraints imposed by the legislation had only affected Muslim women. According to her, the legislator deliberately chose to exempt article 28 from the application of [article] 33 precisely in order to ensure that the rights of women are protected.< /p>
Along the same lines, Mr. Julius Grey, who represents the Canadian Commission on Rights and Freedoms, acknowledged that Bill 21 did not limit the right to practice religion, go to church . However, he clarified, if this right exists, it has been limited, and it has been limited unequally between men and women, so precisely the case [provided by article] 28.
Me Véronique Roy, who represents the Fédération des femmes du Québec, added to these comments by recalling that the Nova Scotia Court of Appeal ruled that section 28 is there to render unconstitutional any sexual discrimination protected by section 15. I see [section] 28 as a bulwark against any violation of section 15 as it relates to equality she said.
In contrast, Me Amélie Pelletier-Desrosiers, who represents the Attorney General of Quebec (and, therefore, the Legault government), has repeatedly emphasized that Article 28 has no autonomous effect.
The position of the Attorney General is that the notwithstanding provision cannot be circumvented by using section 28 to restore effect to derogated rights and freedoms, she said.
Article 33 expressly permits derogation from Article 15, she recalled, notwithstanding Article 28.
In addition, she argued, opponents have failed to produce statistical evidence to support their case of specific discrimination against women. Women make up 88% of primary school teachers and 65% of secondary school teachers, so it's no surprise that they are more affected.
In support of this position, Me Christiane Pelchat provided, on behalf of the group Pour les droits des femmes du Québec, an argument that is likely to generate interesting parallel discussions: Gender equality is reinforced with the law 21, because […] the law is not discriminatory, it is religions that are discriminatory, she let go before the three judges of the bench of appeal.
< blockquote class="styledBase__StyledBase-sc-1push81-0 hoOnuT blockquote is-long-quote">
“Religions, including the Muslim religion and even the Catholic religion and the Jewish religion, are religions that are based on patriarchy , so who are themselves sexist. »
— Me Christiane Pelchat, lawyer for the group Pour les droits des femmes du Québec
However, she added, on its face, Bill 21 is not discriminatory. Do men and women have the same rights that are protected in [section] 15? Yes, since both are forbidden to wear religious signs, she concluded.
Earlier in the day, the parties had finalized discussions on the theme of fundamental rights, a debate launched by Me Luc Alarie, who represents the Mouvement laïque du Québec. He recalled that, since 2008, there has been a pedagogical system which imposes on teachers a duty of reserve in religious matters, including that of not revealing their beliefs or convictions.
He has recalled that the courts have already ruled on the fact that the State can infringe freedom of conscience and religion, in particular when its representatives, in the exercise of their functions, engage in a practice that contravenes to their obligation of neutrality.
In counterweight, Me Molly Krishtalka, who notably represents three teachers, two Muslims and a Catholic who challenge Bill 21, replied that neutrality is required of the State and its institutions, not of the individuals in its employ. /p>
According to her, the Secular Movement makes a mistake when it assumes that a teacher who wears a cross or a hijab means that the institution or the ;State endorses the religion in question.
It is not the actions of each individual that will commit the State to a religious position, she argued.< /p>
There would be a problem if a school board required its teachers to wear a cross or if a teacher asked its students to stand up at the start of class and recite the Hail Mary, she argued.
The Court was to begin in the afternoon the hearing of the fourth of the 10 themes established by the Course or that of the rights of linguistic minorities. Auditions must last 10 days.