The Quebec Court of Appeal’s Ruling on Bill 21: The Uncertain Future of Fundamental Rights

by | May 6, 2024

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About Cloe Dubuc and Myriam Pigeon

Cloé holds a bachelor's degree in International Relations and International Law and is currently completing her LLM at Université Laval. She is the coordinator of the Canada Research Chair in International Criminal Justice and Human Rights and Assistant Director of the International Criminal and Humanitarian Law Clinic. Cloé's research focuses on the use of digital technologies in the courtrooms of international criminal tribunals.
Myriam holds a bachelor's degree in International Relations and International Law and is currently completing her LLB at the University of Quebec in Montreal (UQÀM). She currently works as coordinator for the International Clinic for the Defense of Human Rights at UQÀM.

On 29 February 2024, the Quebec Court of Appeal upheld the validity of the Act respecting the laicity of the State, better known as “Bill 21.” This law, passed under closure in 2019, provides for two main prohibitions: the wearing of religious symbols for state officials in positions of authority such as judges, police officers, and teachers in the public system, as well as the obligation for all state agents to exercise their functions with their faces uncovered.

The law’s adoption, as well as its judicial challenge, quickly stirred up public opinion; opponents of the legislation denounced its discriminatory scope and racist intentions (see here, here and here), while its supporters hailed a pretended “victory for Quebec nation“. We argue that two major repercussions are expected from this judgment: the normalisation of the notwithstanding clause and the discrimination against visible minorities, predominantly Muslim women. This piece outlines the key points of the ruling leading to these impacts.

The risk of normalising the clause stems from the Court’s confirmation of its lack of authority to asses infringement on certain fundamental rights as well as the Ford v Quebec principles. In fact, Bill 21 relies on a notwithstanding clause that overrides sections 2 and 7 to 15 of the Canadian Charter (fundamental freedoms and legal rights) and sections 1 to 38 of the Quebec Charter (fundamental freedoms and political and judicial rights). Consequently, the Court can only review the legality of the notwithstanding clause’s use in Bill 21 and not the compatibility, in substance, with the charters’ provisions. This deprives litigants of the ability to challenge the Bill by alleging violations of their fundamental rights.

Furthermore, in reviewing the clause’s legality, the Court endorsed Ford, which established simple form requirements for the clause’s use  (an express statement that the Bill applies despite the charters suffice). Legislatures are therefore not required “to explain or justify the appropriateness of the legislative policy”. This judgement thus confirmed the ease of overriding charter rights and the risk of such a clause becoming commonplace in Quebec. The government subsequently promised to use it “as long as necessary“. As Amnesty International noted, the risk of authoritarian drifts is highly concerning, especially when they target the rights of already marginalised communities like in this case.

Furthermore, in dismissing a challenge based on section 28 of the Canadian Charter (gender equality), the Court upheld the Bill’s discriminatory effects against Muslim women. In fact, the Court concluded that the Bill could not be invalidated on this ground, as section 28 does not create an autonomous right that could be violated. However, in examining section 3 of the same charter (right to be qualified for membership in a legislative assembly), the Court recognised the Bill’s disproportionately negative impact on women wearing a niqab or burqa and thus confirmed the exemption of members of the National Assembly from the obligation to exercise their functions with their faces uncovered.

Notwithstanding this exemption, we believe that the Bill is expected to perpetuate discrimination in other professional spheres against Muslim women, mainly in public schools (see here, here, here and here). The Bill is said to be the culmination of several attempts at their so-called “integration” into Quebec society, whereas maintaining the wearing of religious symbols, such as the veil, is often perceived as a form of opposition to this integration. This results in employment discrimination that will inevitably lead to the economic marginalisation of these women. Several veiled teachers have already been denied certain contracts since the Bill came into effect. In addition to this economic insecurity, some women have testified to fearing for their physical and psychological well-being, feeling excluded and disrespected rather than allegedly “integrated”.

In any case, the Court of Appeal’s judgement does not mark the end of the Bill 21 challenge. The English Montreal School Board is challenging the decision before the Supreme Court. According to some scholars, the probabilities favour a reversal of the decision since a majority of the sitting judges were appointed by Justin Trudeau, a standard-bearer of multiculturalism.

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