The Quebec Court of Appeal validates “Bill 21”

The court agrees across the board with François Legault's government. Or almost.

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The government of François Legault appealed the decision of the Superior Court of Quebec.

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This is an important legal victory for the Legault government: the Quebec Court of Appeal confirmed on Thursday the constitutionality of the Law on State Secularism and validated its application in English-speaking school boards.

After 15 months of deliberations, the highest court of the province rendered its verdict in a judgment of some 300 pages (New window).

Magistrates Manon Savard, Yves-Marie Morissette and Marie-France Bich not only validated the decision rendered in April 2021 by the Superior Court, but also concluded that the Law on State Secularism – better known as “Bill 21” – did not violate the linguistic rights of English school boards.

Another nuance: the court ruled in favor of the trial judge, Marc-André Blanchard, regarding the exclusion of deputies of the National Assembly from the application of the law.

In other words, the Court of Appeal found that elected officials should have the right to wear religious symbols, unlike other state representatives in a position of power. authority such as judges, crown prosecutors, prison guards, police officers, school principals and teachers.

Adopted in June 2019, “Law 21”, which prohibits several categories of Quebec state employees from wearing religious symbols while exercising of their functions, has caused controversy for almost five years, both in Quebec and in the other Canadian provinces. Its opponents argue in particular that it contravenes the Canadian and Quebec charters of rights and freedoms.

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To shield its law from any prosecution, the Legault government preemptively invoked the derogation provision (also called “derogation clause” or “notwithstanding clause”) of the Constitution – a use validated by judges Savard, Morissette and Bich.

The Court has no authority to rule on whether the Act infringes on the freedoms of religion and expression or the right to the equality guaranteed by the charters, they write.

The invocation of the derogation provision to be renewed every five years, Minister Jean-François Roberge tabled Bill 52 earlier this month. Its adoption, likely, should allow the Legault government to shield “Law 21” from any legal challenge for five more years.

Interview with Louis-Philippe Lampron, full professor at the Faculty of Law of Laval University and specialist in constitutional law

In a short press briefing on Thursday, the Prime Minister of Quebec, François Legault, declared that the decision of the Court of Appeal constituted a great victory for the Quebec nation.

The government of Quebec will continue to use the notwithstanding clause as long as it is necessary, so that Canada recognizes the choices of society of the Quebec nation. It is non-negotiable, he argued.

Long awaited, the judgment rendered Thursday rules on a total of eight calls. Interested parties were heard in November 2022.

We are obviously disappointed, declared the president of the English Montreal School Board (CSEM), Joe Ortona, in the minutes following the publication of the judgment. An appeal is still on the table, he admitted, referring to the possibility that the Supreme Court of Canada will be seized of the case.

The EMSB, however, will take the time to read the judgment before making a decision, warned Mr. Ortona. We must base ourselves on principles of rights and not on emotions, he argued.

But if the case goes all the way to the Supreme Court, the federal government will definitely make itself heard, confirmed Canada's Minister of Justice, Arif Virani, at a press briefing.

This will be an opportunity for the Trudeau government to defend the Canadian Charter of Rights and Freedoms as well as its vision of the “notwithstanding clause”, which should be a tool of last resort, and not of first resort, argued Minister Virani.

Federal Justice Minister Arif Virani declared Thursday that the ins and outs of the debate surrounding the constitutionality of the Quebec State Secularism Act made it a “national issue”.

Prime Minister Justin Trudeau also said that if and when this issue ends up at the Supreme Court, the Liberal government will intervene.

Conversely, the Quebec Secular Movement welcomed the decision to the Court of Appeal, Thursday. It is a victory across the board for all those who defend secularism, and it is a victory more broadly for Quebec […] in its ability to make its choices, summarized lawyer Guillaume Rousseau.

According to Me Rousseau, the Supreme Court should refuse to hear the appeal, since the arguments of the Court of Appeal are “concrete”.

In Ottawa, three political parties are in favor of a referral to the Supreme Court, namely the Liberal Party of Canada (PLC), the Conservative Party of Canada (CPC) and the New Democratic Party (NDP). The Bloc Québécois opposes it.

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