December 12th, 2019 was a sad day for visible minorities in Quebec. The Quebec Court of Appeal denied the application to suspend certain sections of the Laicity Act aka Bill 21 until the Superior Court decides on their constitutionality.

A lot of eyes were on the Quebec Court of Appeal in anticipation of this ruling. Some in favor of Bill 21 even tried to undermine the court by questioning the impartiality of the chief justice, Nicole Duval Hesler. Among them were historian and Dawson College professor Frédéric Bastien, who publicly argued ten days before the ruling that Hesler could not be impartial because she has spoken in favor of multiculturalism and religious accommodation.

While most people would consider Hesler an enlightened judge, her critics cried bias, going insofar to file a complaint against her with the Canadian Judicial Council, the body responsible for ensuring the quality of judicial services in Canada.

The authors of the law knew that Bill 21 could not withstand a legal challenge by an objective court. It’s why they wrote the Notwithstanding Clause into the law, and why in anticipation of the Court of Appeal’s decision, they attempted to undermine its chief justice.

Turns out the bigots were wasting their time questioning Hesler’s impartiality, for while Hesler voted to grant the appeal, she was overruled by her fellow judges. In the 2-1 decision, the court decided that the Notwithstanding Clause written into the law made suspension of articles within it impossible until the Superior Court gave their own ruling on its constitutionality.

Now let’s talk about the Court of Appeal decision.

The ruling was the outcome of an appeal of a Superior Court decision rendered on July 18, 2019. The plaintiff in this case is Ichak Nourel Hak, a student scheduled to complete her Bachelor of Education this winter. She hoped to teach high school French in Quebec, but the passing of Bill 21 last June made that impossible.

The law bans many public service employees – including teachers – from wearing religious symbols while working. Hak wears a hijab, and the law as it stands only allows existing employees who wear such symbols to keep their jobs.

New hires and people seeking a promotion would have to remove the signs of their faith in order to work. As it stands, and in spite of the teacher shortage in Quebec, many people have found their job offers rescinded or their applications denied since the enactment of Bill 21.

Hak and three other groups, among them the English Montreal School Board and the Canadian Council of Muslims, are all working to challenge the law in court, but until those challenges are heard and decided, the law remains in effect.

Hak went to the Superior Court seeking an injunction to suspend articles 6 and 8 of the Laicity law until the constitutional challenges were decided.

Article 6 prohibits certain public employees from wearing religious symbols. It also defines religious symbols as all objects, especially clothing, symbols, jewelry, accessories and headgear worn with religious conviction or belief, as well as anything that could be considered religious clothing. Article 8 requires that members or employees of public institutions carry out their duties with their faces uncovered, and that anyone wishing to receive government services must uncover their faces in order to receive them – a clear reference to the Niqab worn by some Muslim women. Though the Laicity Law is supposed to apply to everyone equally, experts agree its effects will be felt mostly by Muslim women in Quebec.

The Superior Court refused to suspend these parts of the law because of the Notwithstanding Clause written into it. The Quebec Court of Appeal maintained that decision.

So what is the Notwithstanding Clause and why can it affect a provincial court decision?

All laws in Canada, be they provincial or federal, are subject to the Constitution, which takes precedence over all other laws. Included in the Constitution is the Canadian Charter of Rights and Freedoms.

Laws that violate the Constitution can be challenged in court, and in the case of a successful challenge, struck down. In order to avoid such challenges, governments can use the Notwithstanding Clause.

The Notwithstanding Clause is section 33 of the Canadian Charter of Rights and Freedoms. It is written into our constitution to allow governments, provincial and federal, to enact laws that violate sections seven to fifteen of the Canadian Charter – sections referring to equality, freedom from discrimination, and the rights of the accused in criminal cases – provided they indicate within the law that it applies notwithstanding the Charter.

The Clause is not, however, the great block to legal challenges Premier François Legault makes it out to be, as it’s only valid for five years. At the end of the five year period, the National Assembly can let it expire thus opening it to new legal challenges, or they can renew it by another act of parliament.

The five-year limit allows for governments to change and in cases where a law has been struck down by the courts, it can buy governments time to keep the law in effect while they rewrite the law so that it conforms to the Charter.

Any legal challenges to the Laicity law will either have to wait for the five years to expire, or find ways around the Notwithstanding Clause to successfully challenge the law. Current challenges include, but are not limited to:

  • That the law violates section 28 of the Canadian Charter guaranteeing equal treatment before the law of males and females given that the law disproportionally affects women. In the past, section 28 has only been used to interpret laws, not challenge them.
  • That the law criminalizes the wearing of religious symbols in certain professions and therefore is unconstitutional on jurisdictional grounds as it was enacted by a provincial government when only the Federal government can enact criminal legislation
  • The law is too vague

The Court of Appeal was not there to render a decision on the Laicity law’s merits. It was there to decide whether or not the law allowed them to suspend certain parts of the law until its merits are decided by another court.

The Court of Appeal recognized that the Laicity Law causes harm to the people it affects, especially women. It recognized that the grounds for the legal challenges – set to be heard by the Superior Court in October 2020 – have merit. It refused to suspend the law until those challenges are heard and decided, stating that the use of the Notwithstanding Clause tied their hands at this stage.

Until the actual challenges to the Laicity law are heard and decided, do not lose hope. Be an open and vocal critic of François Legault and his government and step between those using the law as an excuse to harass and assault innocent people.

Support movements like “Non à la Loi 21” and wear one of their buttons with pride. Show solidarity with Quebec’s religious minorities and laugh openly and loudly at people who defend the law as anything but the legalized bigotry it is.

The fight is not over until we say it is. So keep fighting.

Featured Image of the Quebec Court of Appeals building in Montreal by Jeangagnon via WikiMedia Commons

Last winter, history was made in Canada when, after years of lobbying, the Supreme Court struck down three major aspects of sex work laws in Canada, making them void. This was a unique occurrence, where the Supreme Court gave legislators one year to come up with new legislation. This opportunity for change meant that Canada could lead the way with sex work reform, crafting a new model that could make the lives of sex workers less marginalized and overall safer.

While some applauded the strike down, groups like STELLA based in Montreal, and Concordia University’s Simone de Beauvoir Institute, acted as an intervener on the case. Others like the Native Women’s Association of Canada (NWAC), took a firm stance against the ruling, stating that such a ruling failed to protect Indigenous women who are already marginalized by society.

Now, the Conservative government has tabled a bill that would target – in Minister Peter MacKay’s words – “pimps and johns” in an effort to criminalize the purchasing of sex work. However this has received criticism from groups that say this will actually make it harder for sex work to be practiced safely.

The name itself is unsavoury – “The Protection of Communities and Exploited Persons Act”– a bill that itself seems concentrated on taking the agency away from sex workers, by deeming them “exploited persons.” Even after tabling the bill, MacKay referred to sex work as a “degrading activity,” that will “always have inherent danger.”

Under the proposed bill, the buying of sexual services, as well as the profiting from others, will be deemed illegal. Additionally, it will also be illegal for services to be advertised in areas where children could be present, something that those who oppose the bill say would force those involved with sex work into less populated and more dangerous areas.

Another part of the act makes it illegal for print or online advertising of services, something that Christine Wilson points out in a Globe and Mail editorial, makes it so sex workers cannot work from home or bawdy houses, areas that can be made secure and vetted beforehand and thus making it more unsafe for sex workers.

Across the board the feedback from the proposed bill appears to be negative. Sex workers and organizations that work to fight for their rights have come out against the bill. The consensus is the bill, while not totally criminalizing sex work, would make it hard for sex workers to work in a safe, secure environment.

By pushing Bill C-36 forward, the Conservative government is ignoring the chance to actually positively reform the laws regarding sex work in Canada, and instead pushes forward a bill that actually endangers the lives of sex workers. MacKay, and other members of the government, should actually take the advice of the workers they are supposedly seeking to protect, and formulate laws in consultation with groups like STELLA, or Maggie’s in Toronto, to form new legislation that would actually be beneficial for sex workers across Canada.