Bill 21: The Debate Moves to the Quebec Court of Appeal

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Bill 21: the debate moves to the Quebec Court of Appeal

Montreal lawyer Julius Gray challenges Bill 21.

This is the start of the second round in the legal saga where opponents of the State Secularism Act and its defenders clash. The debate moves to the Quebec Court of Appeal.

If everything seems to oppose the two camps, they nevertheless agree on one thing: the trial judge erred, and the judgment rendered in April 2021 must be invalidated. But the reasons for their dissatisfaction are diametrically opposed.

While Superior Court Judge Marc-André Blanchard upheld the broad outlines of Bill 21, which prohibits state employees in positions of authority, including professors, from wearing religious symbols in the classroom. #x27;exercise of their functions, it also invalidated its articles which concern the English school boards and the elected officials of the National Assembly. A decision that the defenders of the law, the Legault government in the lead, received like a slap in the face.

Thus, the lawyers of a dozen groups, including those of the Government of Quebec, the English-Montreal School Board, the Quebec Secular Movement and the Independent Federation of Education, will parade before the magistrates of the Quebec's highest court to present their arguments during the hearings, scheduled for November 7 to 18.

It is not a question of redoing the trial, said straightaway the professor of constitutional law at Laval University Patrick Taillon, questioned about the procedure. It is for the litigants on each side to show that, where the judgment does not suit them, there is a material error that has been made by the [trial] judge.

Patrick Taillon, professor of constitutional law at Laval University

Patrick Taillon expects relatively short pleadings. We are essentially on questions of law. All the factual evidence, the expert evidence, that belongs to the first instance, we don't start the long process again, he says.

“It's still the trial of Bill 21, but it's also the trial of the lower court decision. »

— Patrick Taillon, professor of constitutional law at Laval University.

The lawyer for the Mouvement laïque québécois, Me Guillaume Rousseau, intends to plead that not only [Law 21] does not infringe freedom of conscience and religion, on the contrary, it comes to implement this freedom of religion and of consciousness. He will argue that the law protects the beneficiaries of public services, students and their parents, who have the right, thanks to Law 21, to freedom of conscience, to secular public services, especially in schools.

< p class="e-p">It is above all the decision of Judge Blanchard to exempt the English school boards from the law which is at the center of the appeal filed by his client. A decision motivated by section 23 of the Canadian Charter of Rights and Freedoms, which allows minority language school organizations to manage their own operations, which includes, according to the magistrate, the hiring criteria .

It's as if the English school boards were completely immune to Quebec laws, argues Me Rousseau, an objection shared by Quebec's Minister of Justice, Simon Jolin-Barrette, and which motivated his decision to appeal the case as well. This is an interpretation [of Article 23] that goes way too far. It is therefore an error that was made by the trial judge which can be corrected by the Court of Appeal, adds Me Rousseau.

Me Guillaume Rousseau, representing the Mouvement laïque québécois.

The main interested party, the English-Montreal School Board, also chose to appeal the case, even if the Superior Court agreed with it in part. Bill 21 is a discriminatory law that targets Muslim women, insists its president, Joe Ortona.

If he says he is satisfied with the trial judgment, his organization intends to take the case further and have this law invalidated everywhere across Quebec.

To hear the various players in the case, the upcoming decision of the Quebec Court of Appeal would only be a formality. Regardless of the decision of the judges, all expect the case to end up, one way or another, in the Supreme Court of Canada.

< p class="e-p">I don't want to assume, but I don't see how this government, with the laws it has passed, will not appeal if it obtains an unfavorable decision, advances Joe Ortona.

I expect us to go to the Supreme Court, he concludes.

Same story on the side of Me Guillaume Rousseau. For the judgment of the Superior Court, each of the parties appealed the aspect of the judgment that did not suit them. We can expect the same thing in the judgment of the Court of Appeal, he analyzes.

“This is an issue of pan-Canadian significance. The Supreme Court can be expected to hear an appeal. »

— Me Guillaume Rousseau, lawyer for the Mouvement laïque québécois

Even the federal government expects the case to be heard in the highest court in the land. Indeed, if the government of Justin Trudeau has for the moment remained in the background despite its proclaimed and repeated opposition to the CAQ law, the federal Minister of Justice, David Lametti, has already indicated his intention to jump into the fight. x27; once the case is before the Supreme Court. .jpeg” media=”(min-width: 0px) and (max-width: 99999px)”/>

It is a legal battle whose outcome is eagerly awaited. The Quebec Court of Appeal will begin hearing the case surrounding Bill 21 on state secularism on Monday. It prohibits the wearing of religious symbols by certain public service employees, such as teachers. A Gabrielle Proulx report.

Behind the debate on the validity of Bill 21 lies another, that of the use by provincial governments of the notwithstanding clause, also called the “notwithstanding clause”, in a preemptive way to avoid possible legal remedies.

It is thanks to this legal mechanism, which allows a provincial law to override certain sections of the Canadian Charter of Rights and Freedoms, that the State Secularism Act was kept alive by the Superior Court.

“I do not agree with the notwithstanding clause. It is used, yes, in a constitutional way, but in an abusive way.

—Joe Ortona, President of the English Montreal School Board.

She's on the way, says Patrick Taillon. He believes that in a possible Supreme Court appeal, critics of Bill 21 hope to convince the highest court in the land to review, and possibly tighten, the use of this provision.

The President of the English Montreal School Board, Joe Ortona

Specifically, they want the Court to overturn a 1988 decision, the Ford case, which at the time said governments can use [the notwithstanding clause], and the courts have not. not to control if they do it for good or bad reasons, summarizes Mr. Taillon.

Whether we agree or not, I recognize that the notwithstanding clause is in the Charter, it is part of the Constitution, indicates Joe Ortona before adding that, in principle, he cannot agree with its use.

The notwithstanding clause should be invoked for extreme, urgent, life-threatening situations. Maybe that could be reasonable. But for jobs, for unions, for fundamental rights, no, it's not justified, he says, also referring to the government's use of the notwithstanding provision of Ontario to prohibit a strike in the education sector.

The Quebec Court of Appeal must render its judgment at the beginning of the ;next year.

With information from Gabrielle Proulx

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