In a divided decision issued Thursday, Quebec’s Court of Appeal decided not to suspend sections of the province’s secularism law.
Though the three judges of the panel agreed the law is causing certain people irreparable harm, two of the judges ruled their hands are tied by the government’s use of the notwithstanding clause in the matter.
Chief Justice Nicole Duval Hesler, who is facing complaints over previous comments she made about the law, was the sole dissenting judge, ruling in favour of suspending the section of the law that prohibits people from wearing religious symbols at work.
But the government’s use of the notwithstanding clause, which prevents citizens from challenging a law for violating parts of the Charter of Rights and Freedoms, was a deciding factor for the other two judges.
The use of the clause, Judge Robert Mainville ruled, made suspending the sections not “legally possible” at this stage. Doing so would also not be in the public interest, he added.
“The vast majority of the main religions practised in Quebec, including Christianity, Judaism and Islam, do not, at first glance at least, seem to make the wearing of religious symbols at work an absolute requirement of the faith,” Mainville wrote.
“Many of the issues pertaining to the wearing of religious symbols by Quebec police officers, teachers, school principals and judicial personnel — including the issues of law that arise — are complex and do not easily lend themselves to summary analyses based on piecemeal evidence,” he continued, “as the appellants are asking us to do in the case at bar.”
The province’s highest court was ruling on an injunction request that sought to have some of the law’s more controversial elements stayed while the Quebec Superior Court examines whether the law itself is unconstitutional.
The law — Bill 21 — came into effect this summer. It prohibits teachers, police, judges and other public sector workers deemed to be in positions of authority from wearing religious symbols at work.
Two civil rights groups and a university student had filed the legal challenge the day after the law passed, arguing it is unconstitutional. But the groups failed in Quebec Superior Court to have its central components suspended while their full legal challenge is heard.
They then challenged that decision before Quebec’s Court of Appeal. It’s that appeal the court ruled on Thursday.
Reacting after the ruling, one of the groups behind the appeal, the National Council of Canadian Muslims, said it was disappointed with the decision but that it “never thought that fighting for the rights of Quebecers and Canadians would be easy.”
“We are reviewing our options now,” said executive director Mustafa Farooq.
The director of the Canadian Civil Liberties Association, the other group involved in the case, called the decision “devastating” and said the group isn’t done “fighting this unjust law.”
Quebec Justice Minister Sonia LeBel, on the other hand, welcomed the decision, noting the government “will continue to defend the merits and the constitutionality of this Act.”
In arguments before the appellate court, the group had put forward that the law violates Charter sexual-equality guarantees that are not shielded by the notwithstanding clause.
Virtually all the people affected by the law so far are female teachers who can’t find work because they wear the Islamic head scarf, they argued, submitting affidavits that told stories of Muslim women incapable of working as teachers because of their faith.
In Thursday’s ruling, Judge Dominique Bélanger wrote it is “apparent” those teachers’ fundamental rights are being violated.
But, she added, given the notwithstanding clause, “the courts must abandon to their fate women graduates who are willing to work and who, for the sole reason that they wear the veil, have been denied access to a job for which they hold all the skills.”
Hesler, the sole dissenting voice, ruled that allowing the teachers’ rights to be respected while the legal challenge is ongoing would not have “far-reaching effects.”
The judge also noted the government’s decision to implement a grandfather clause into the law that allows teachers already in their positions to keep teaching.
If the government thought that doesn’t go against the public interest, she wrote, then “a temporary stay of a single provision of the Act, liable to allow a few more individuals to teach while wearing the hijab, would not, in my humble opinion, harm the public interest.”
The legal challenge was filed on behalf of Ichrak Nourel Hak, a Université de Montréal student training to become a teacher. Under the law, Nourel Hak is not allowed to teach in a Quebec public school while wearing her hijab.
It is only one of several challenges to the law that are before Quebec’s courts.