Opponents of Quebec’s secularism regulation — often known as Invoice 21 — argued earlier than the province’s Court docket of Enchantment Monday that the CAQ authorities went too far in pre-emptively invoking the constitutional however clause so as to defend the regulation from courtroom challenges.

The Quebec authorities and a number of other civil liberties teams are presenting arguments about a Superior Court docket resolution final yr, which upheld most — however not all — of the province’s controversial secularism regulation.

Enacted beneath the Coalition Avenir Québec (CAQ) authorities in June 2019, the secularism regulation prohibits public college academics, law enforcement officials, authorities attorneys and a number of different civil servants — and even some politicians — from carrying spiritual symbols at work.

“A regulation that pursues a purpose that is categorically illegitimate in a society of rights and freedoms shouldn’t be protected by however clause,”  Alexandra Belley-Mackinnon, lawyer for a gaggle known as Coalition Inclusion Québec informed the courtroom Monday.

As quickly because the regulation was handed, civil liberties teams, together with the Nationwide Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Affiliation (CCLA), started submitting authorized challenges. In all, 17 completely different teams, some in assist of the regulation and a few towards it, are represented on the hearings this week.

“Think about having to inform your daughter that she will be able to by no means be a decide due to her look. Think about telling your son that he can by no means be a instructor due to his look,” Stephen Brown, the CEO of the NCCM, stated throughout a information convention Monday on the steps of the Montreal courthouse minutes earlier than arguments started.

“It is untenable.”

Difficult a ruling from 2021

In April 2021, Superior Court docket Justice Marc-André Blanchard dominated that the regulation violates the essential rights of non secular minorities within the province however is authorized due to Part 33 of the Canadian Constitution of Rights and Freedoms, often known as the Structure’s however clause. 

The CAQ authorities pre-emptively invoked the however clause to protect its regulation from constitutional challenges. The clause permits provinces to exempt legal guidelines from sure sections of the constitution. Its software to legal guidelines is topic to renewal each 5 years. 

Nevertheless, in his resolution, Blanchard exempted English faculties from the spiritual symbols ban.

He additionally dominated that members of the province’s Nationwide Meeting are allowed to put on spiritual symbols that cowl their faces, reminiscent of a niqab, in accordance with the part of the constitution that ensures each citizen’s proper to vote and be a member of the legislature.

Not lengthy after the choice was handed down, Quebec Justice Minister Simon Jolin-Barrette, the architect of Invoice 21, stated the province deliberate to attraction the 2 conclusions of the judgment relating to English faculties and legislators. 

The NCCM and CCLA then additionally filed an attraction, saying the regulation banning spiritual symbols in lots of public sector jobs is unconstitutional and ought to be struck down.

However clause within the highlight

The hearings, scheduled for 4 days this week, will take a look at completely different facets of the regulation. First up Monday was the usage of the however clause.

Attorneys for a number of teams against the regulation argued utilizing the however clause in a sweeping trend to forestall courtroom challenges was going too far.

Theodore Goloff, lawyer for the Lord Studying Society, which represents Jewish jurists, informed the courtroom the however clause was not a “free cross” to allow governments to droop rights with out debate.

“Invoice 21 creates a regime that’s extralegal, that’s, not topic to the rule of regulation,” Goloff informed the panel of three judges.

“The invoice creates an exception to the precept that nothing and nobody might be above the regulation.  It locations the state itself above the regulation,” he stated.

Julius Gray, representing the Canadian Human Rights Fee and the Quebec Neighborhood Teams Community, argued that utilizing the however clause in a sweeping manner goes “towards the spirit” of the Canadian Constitution of Rights and Freedoms.

Gray argued that the clause was designed for use in a “restricted, surgical and exact” trend.

Fréderic Bédard, lawyer for the academics’ union Fédération autonome de l’enseignement, argued that the CAQ had drafted the regulation for populist political causes and that it has did not exhibit an actual and pressing must droop folks’s constitutional rights.

Isabelle Brunet, lawyer for the Legal professional-Common of Quebec, argued the however clause is nothing new and that the province was effectively inside its rights to invoke it.

Brunet stated the clause is a “safeguard of parliamentary independence” that offers the final phrase to legislators.

She stated the clause is an efficient instance of how federalism is meant to work, permitting every province to protect its particular person id.

However the workplace of federal Justice Minister David Lametti issued an announcement Monday on his behalf which stated: “How a girl, or any individual, expresses themselves and their spiritual beliefs in public and at work is a charter-protected proper.”

“I’m carefully following the problem to Invoice 21 that’s at present earlier than the Quebec Court docket of Enchantment, and have dedicated to intervening within the matter ought to it attain the Supreme Court docket of Canada.”

Opposing views

All through the hearings — which is able to final Monday by means of Thursday, after which resume on Nov. 16 — the Court docket of Enchantment will hear from a number of events arguing to both abolish or beef up the regulation. 

Furheen Ahmed, a instructor at Westmount Excessive Faculty in Montreal, who wears a hijab, is hoping for the regulation to be struck down. 

“It is absurd,” she stated. “There is no proof of something destructive popping out of people within the classroom educating carrying a kippah, carrying a turban, carrying a hijab.”

Greater than two years after Invoice 21 got here into impact, she stated she’s seen tales of people who’ve misplaced their jobs or who’ve chosen to pursue careers exterior of Quebec as a result of they’re unable to work within the public sector and put on the religions symbols that matter to them. 

Ahmed stated the difficulty is folks’s notion of faith, or sure religions, “and that notion is being thrown onto my freedom, my decisions. [It’s] not truthful.”

On the opposite finish of the spectrum, a pro-secular group, the Mouvement laïque québécois (MLQ), will argue not solely that Invoice 21 would not trample minority rights however that it would not go far sufficient in defending the rights of oldsters to have their kids obtain a secular training. 

“The faculties usually are not there to make sure the liberty of non secular follow of the academics. The varsity is there to educate college students, to make sure their freedom of faith, to make sure the equality of all college students’ religions,” stated Daniel Baril, president of the MLQ, in an interview with CBC Information. 

Baril stated his group would ideally need the spiritual symbols ban to use to all employees in faculties — not simply academics — in addition to in CEGEPs and early childcare centres. 

Laura Berger, a employees lawyer with the CCLA, stated her staff can be discovering progressive methods to skirt across the however clause to argue towards forcing folks to “select between their religion and their careers.” 

She stated Quebec must strike a stability between the appropriate to a secular province and people’ rights. 

“We firmly consider that freedom of faith means pushing faith out of the state. It does not imply pushing folks out of workplaces,” she stated. 

Berger stated the Enchantment Court docket can take between six and 18 months to concern a ruling. 

It is extensively anticipated the regulation will finally be challenged within the Supreme Court docket of Canada.