Even if everything seems to speak against the two camps, they agree on one thing: the trial judge was wrong and the verdict handed down in April 2021 must be overturned. But the reasons for their dissatisfaction are diametrically opposed.
While Superior Court Judge Marc-André Blanchard upheld the broad lines of Bill 21, which prohibits government employees in positions of authority, including teachers, from wearing religious symbols in the exercise of their functions, he also invalidated its articles, which the English school authorities and the elected members of the National Assembly. A decision that right-backs, led by the Legault government, received as a slap in the face.
Thus, the lawyers of a dozen groups, including those of the Quebec government, the English-Montreal School Board, the Quebec Secular Movement and the Independent Federation of Education, will parade before the judges of Quebec’s highest court to present their arguments during of hearings scheduled for November 7-18.
A verdict under the magnifying glass
It is not about repeating the process, said the professor of constitutional law at the University of Laval, Patrick Taillon, when asked about the process. It is up to the litigants on each side to prove that the judge made a serious mistake if the verdict does not suit them. [de première instance].
Patrick Taillon, Professor of Constitutional Law at Laval University
Photo: Radio Canada / Alexandre DUVAL
Patrick Taillon expects relatively short pleadings. We mainly deal with legal issues. All the factual evidence, the expert evidence, they belong to the first instance, we don’t start the long process again, he said.
“It’s still the Law 21 process, but it’s also the trial court process. »
— A quote from Patrick Taillon, Professor of Constitutional Law at Université Laval.
Not only the lawyer for the Mouvement laïque Québécois, Me Guillaume Rousseau, wants to invoke this [la loi 21] does not violate freedom of conscience and religion, but serves to enforce this freedom of religion and conscience. He will argue that the law protects public service beneficiaries, students and their parents, who have the right to freedom of conscience under Law 21, to secular public services, particularly in schools.
In particular, Judge Blanchard’s decision to exempt the English school authorities from the law is at the center of his client’s appeal. A decision motivated by Section 23 of Canada’s Charter of Rights and Freedoms, which allows minority language school organizations to self-govern their operations, which Richter said includes eligibility criteria.
It’s as if English-speaking school boards are fully shielded from Quebec’s laws, argues Me Rousseau, an objection shared by Quebec’s Attorney General Simon Jolin-Barrette, which motivated his decision to appeal the case as well. It’s an interpretation [de l’article 23] which is going too far. It is therefore an error by the trial judge, which can be corrected by the Court of Appeal, adds Me Rousseau.
Me Guillaume Rousseau, representative of the Mouvement laïque Québécois.
Photo: André Chevrier
The main party, the English-Montreal School Board, also decided to appeal, although the Superior Court partially agreed. Bill 21 is a discriminatory law targeting Muslim women, stresses its President, Joe Ortona.
If he says he is happy with the trial verdict, his organization intends to pursue the case and void this law throughout Quebec.
A one-way ticket to the Supreme Court?
In order to hear the various actors in the case, the pending decision of the Quebec Court of Appeals would be a mere formality. Regardless of the judge’s decision, everyone expects the case to end up in the Supreme Court of Canada one way or another.
“I don’t want to accept it, but I don’t see how this government, with the laws it has passed, will not appeal if it gets an unfavorable decision,” says Joe Ortona.
I expect we go to the Supreme Court, he concludes.
The same story alongside Me Guillaume Rousseau. For the Superior Court’s verdict, each party appealed the aspect of the verdict that they did not like. We can expect the same in the Court of Appeal’s verdict, he analyses.
“This is an issue of Pan-Canadian importance. We can expect the Supreme Court to appeal. »
— A quote from Me Guillaume Rousseau, advocate of the Mouvement laïque Québécois
The federal government also expects the case to be heard in the country’s highest court. Even if Justin Trudeau’s administration has kept a low profile for now, despite its proclaimed and repeated rejection of the CAQ Act, federal Attorney General David Lametti has already signaled his intention to eventually jump into the arena before the Supreme Court.
It is a lawsuit whose outcome is eagerly awaited. The Quebec Court of Appeals will begin hearing the Bill 21 case on state secularism Monday. It prohibits the wearing of religious symbols by certain public employees, such as B. Teacher. A report by Gabrielle Proulx.
The pejorative clause in the dock
Behind the debate about the validity of Bill 21 lies another one, namely the recourse of the state governments to the exception rule, also known as the “disregard clause”, as a preventative measure to avoid possible legal remedies.
Thanks to this legal mechanism, which allows a provincial law to override certain articles of Canada’s Charter of Rights and Freedoms, the law respecting the state’s secularism was kept alive by the Supreme Court.
“I do not agree with the waiver clause. Although it is constitutional, it is used abusively. »
— A quote from Joe Ortona, President of the English Montreal School Board.
It’s on the way, says Patrick Taillon. He believes critics of Bill 21 are hoping in a potential Supreme Court appeal to persuade the country’s highest court to review and possibly tighten the application of the provision.
The President of the English Montreal School Board, Joe Ortona
Photo: Radio Canada / Sudha Krishnan
In particular, they want the court to overturn a 1988 decision, the Ford case, which at the time said governments could use it [la disposition de dérogation]and the courts don’t have to control whether they’re doing it for good or bad reasons, Mr. Taillon summarizes.
Whether we agree or not, I recognize that the exception clause is in the charter, it’s part of the constitution, states Joe Ortona, before adding that in principle he cannot agree to its use.
The no-objection clause should be invoked in extreme, urgent, life-threatening situations. Maybe that would make sense. But for jobs, for unions, for fundamental rights, no, that’s not justified, he says, also referring to the Ontario government’s use of the exception clause to ban a strike in the education sector.
The Quebec Court of Appeals is scheduled to render its verdict early next year.
With information from Gabrielle Proulx