The Court of Appeal examines the wearing of the veil in the National Assembly
The Quebec Court of Appeal is expected to render a judgment on Bill 21 early next year.
The prosecutors of the Legault government attacked, Thursday in the Court of Appeal, the portion of the judgment of first instance which invalidated the ban on sitting with a covered face in the National Assembly contained in the law 21 on secularism.
Judge Marc-André Blanchard considered in his decision that this ban violated the right guaranteed by the Canadian Charter to stand in a federal or provincial election.
The magistrate had based his reasoning on the fact that this right escapes the notwithstanding provision used by the government to suspend freedom of religion in order to prohibit the wearing of religious symbols by certain people in a position of religious freedom. #x27;authority.
Speaking on behalf of the Attorney General of Quebec, Ms. Isabelle Brunet first criticized Judge Blanchard for having pronounced in a theoretical manner, since no evidence had been presented to her according to which a person could not have run for office with a covered face. A constitutional question should not be decided in a factual vacuum, she argued.
Most importantly, she continued, Bill 21 does not prevent person with a covered face to run and get elected. It is when sitting that she must uncover her face.
Beyond the uncovered face, a Member is not prevented from wearing his religious sign in the Chamber unless he is appointed President or Vice-President or Minister of Justice, which represents a privilege and not a right, she argued.
Speaking behind her, Me Christian Trépanier came to speak on behalf of the former president of the #x27;National Assembly, François Paradis, to recall that the Supreme Court has already ruled on the existence of exclusive and absolute jurisdiction of Parliament over certain activities, including the control exercised by the Chambers over proceedings or debates in Parliament.
“It is up to Parliament, not the courts, to enforce the removal of a face covering or the wearing of a religious sign for the president or vice president. »
— Me Christian Trépanier, lawyer for the former President of the National Assembly, François Paradis
In a case like this, he argued, Parliament is the judge of the appropriateness of the modalities of its exercise which escapes all judicial control, an assertion which raised several questions from the three judges on the bench of the Court of Appeal.
As against the Attorney General, Me Olga Redko, representing in particular the plaintiff Ichrak Nourel Hak and the National Council of Canadian Muslims , came to give the reply, agreeing with Judge Blanchard.
For us, the right to stand for election guaranteed by Article 3 protects not only the right to stand as a candidate, but also the right to sit and do the work of a Member of Parliament once elected.< /p>
The right to be eligible necessarily includes the right to serve as a Member of Parliament once elected, because otherwise being eligible does not not much use, she hammered.
“For the witnesses who testified, both those who wear a niqab and those who wear a religious symbol more generally, religious practices are not behaviors that they can easily change, because these practices are part of their identity. religion and personal identity.
— Me Olga Redko, lawyer for the National Council of Canadian Muslims
For his part, Me Theodore Goloff, of the Lord Reading Law Association, argued that by excluding those who are required to wear religious symbols […] if they were to stand for election against those not required to wear religious items, there would be an indirect visible benefit to one candidate over another. Our position is that this undermines the integrity of a free and fair election.
Earlier in the day, the parties had notably debated the division of powers between the federal and provincial levels, the objective of the opponents being to demonstrate that the Government of Quebec had legislated outside its jurisdictions by adopting its Act respecting the secularism. Under this theme, Me Redko had tried to demonstrate that the preamble [of Bill 21] places secularism as a fundamental value of Quebec society. The objective of the law is therefore to protect a social value.
For this government, religious practice threatens secularism, threatens a fundamental value of society, she argued, pointing out that, according to certain interpretations of the law, this classifies this legislation in the field of morality and, therefore, criminal law, which is a federal responsibility.
Attacking the same question from another angle, Me Molly Krishtalka, representing three teachers and the Coalition inclusion Québec, also explained that the federal government certainly had a say in the case of legislation affecting religion and invoked, in support of this assertion, that the deconfessionalization of schools by Quebec had to be done with the consent of the federal government.
In his reply, the government prosecutor, Me Francis Demers, dismissed these claims out of hand, and reproached his colleagues for analyzing only the articles which relate to the prohibition of religious symbols ( article 6) and on the obligation to provide a service with an uncovered face (article 8) of law 21, when there are nearly thirty of them. The overall objective of the law, which is to affirm the secularism of the state, is evaded. The goal is to redefine the relationship between the state and religion in the legal, legislative and public service spheres, he said.
Law 21 simply requires a stricter duty for certain people in the performance of their duties in the machinery of government, he argued.
As for giving the law on secularism a criminal character, Mr. Demers pointed out that the sanctions provided for in section 13 of the law are not criminal sanctions at all. In any event, the federal Parliament does not have exclusive jurisdiction over elements of criminal law, added the litigant and, for example, the Highway Safety Code, which falls under Quebec, includes sanctions that are of a nature criminal, he recalled.