This is a major legal victory for the Legault government: Quebec's Court of Appeal on Thursday upheld the constitutionality of the State Secularism Act and upheld its application in English-language school boards.
After 15 months of deliberations, the province's highest court handed down its verdict in a ruling that was around 300 pages long (new window).
Judges Manon Savard, Yves-Marie Morissette and Marie-France Bich not only confirmed the Supreme Court's decision of April 2021, but also concluded that the law on state secularism – better known as “Bill 21” – is not contrary to law the law violates the language rights of English-speaking school authorities.
Another nuance: the court ruled in favor of the trial judge Marc-André Blanchard regarding the exclusion of members of the National Assembly from the application of the law.
In other words, the appeals court held that elected officials should have the right to wear religious symbols, unlike other representatives of the state in positions of authority such as judges, prosecutors, prison guards, police officers, school principals and teachers.
The use of the “notwithstanding clause” was confirmed
Law 21, passed in June 2019 and banning several categories of Quebec state employees from wearing religious symbols in the performance of their duties, has been causing controversy both in Quebec and in the other Canadian provinces for almost five years. In particular, its opponents argue that it violates the Canadian and Quebec Charters of Rights and Freedoms.
To protect its law from any prosecution, the Legault government preemptively invoked the exception provision (also called the “notwithstanding” or “notwithstanding” clause) of the Constitution, an application upheld by Justices Savard, Morissette, and Bich.
The court does not have the authority to decide whether the law violates freedom of religion and expression or the right to equality guaranteed in the charters, they write.
Since the use of the exemption provision must be renewed every five years, Minister Jean-François Roberge presented Bill 52 earlier this month. Its adoption should likely allow the Legault government to withdraw “Law 21” from any legal challenge for another five years.
Interview with Louis-Philippe Lampron, full professor at the Faculty of Law at Laval University and specialist in constitutional law
In a brief press conference Thursday, Quebec Prime Minister François Legault said the appeal court's decision represented a major victory for the nation of Quebec.
The Government of Quebec will continue to use the derogation clause for as long as necessary for Canada to recognize the social choices of the nation of Quebec. It's non-negotiable.
In the same vein, Simon Jolin-Barrette reiterated on ICI RDI that it was not necessarily obvious that this case would go to the Supreme Court.
For us, the matter is finally settled. It's a win all around. “We have just recognized the sovereignty of the Quebec Parliament,” said the Quebec Justice Minister.
The CAQ also prefers to use the term parliamentary sovereignty provision rather than derogation because this provision serves to enforce the will of the people.
Towards an appeal to the Supreme Court
Thursday's highly anticipated verdict decides on a total of eight appeals. Interested parties were heard in November 2022.
“We are obviously disappointed,” English Montreal School Board (CSEM) president Joe Ortona said in minutes after the ruling was released. An appeal is still on the table, he acknowledged, citing the possibility that the case could be heard by the Supreme Court of Canada.
However, the EMSB will take the time to read the ruling before making a decision, Mr Ortona warned. We must be guided by legal principles and not emotions, he argued.
However, if the case goes to the Supreme Court, the federal government will certainly make its voice heard, Canada's Justice Minister Arif Virani confirmed at a press conference.
This is an opportunity for the Trudeau government to defend the Canadian Charter of Rights and Freedoms and its vision of the “notwithstanding clause,” which should be a tool of last resort, not first resort, argued Minister Virani.
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Federal Justice Minister Arif Virani said Thursday that the debate over the constitutionality of Quebec's secularism law is, in all its details, a “national matter.”
Photo: The Canadian Press / Justin Tang
Prime Minister Justin Trudeau also said if and when [cette question] If the case goes to the Supreme Court, the Liberal government will intervene.
Conversely, the Quebec Secular Movement welcomed the appeal court's decision on Thursday. It's a victory across the board for all those who defend secularism, and it's a victory more broadly for Quebec. […] in his ability to make decisions, summarized lawyer Guillaume Rousseau.
According to Me Rousseau, the Supreme Court should reject the appeal because the Court of Appeal's arguments are “concrete.”
In Ottawa, three political parties are in favor of going to the Supreme Court, namely the Liberal Party of Canada (PLC), the Conservative Party of Canada (PCC) and the New Democratic Party (NDP). The Bloc Québécois is against it.