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On April 20, 2021 the Superior Court of Quebec issued a ruling on Bill 21, Quebec’s Secularism law which many Canadians were awaiting with baited breath. It was a victory for some, and a tragedy for others.

In its decision, it upholds the Quebec Secularism law with the exception of English schools in Quebec, and the Coalition Avenir du Quebec government under Premier François Legault has already announced its plans to appeal. This article will give a rundown of the ruling itself, the response by those affected, and what it represents to the people of Quebec and Canada.

I’m not going to go into all the nuances of Quebec’s Secularism Law, hereafter Bill 21. I gave a full and detailed rundown in multiple articles when the law was forced through the National Assembly in 2019.

In a nutshell, it severely limits employment in most of Quebec’s public sector as well as access to certain government services for anyone who wears religious symbols, including crosses, hijabs, headscarves, and kipas/yarmulkes. At the time, the government claimed the law would unite Quebeckers, but it has made us more divided than ever. Hate crimes and harassment of Muslim women are on the rise, something experts tried to warn the government about prior to the law’s passing.

The government knew that the law would never survive a legal challenge based on constitutional rights so they wrote in the Notwithstanding Clause, a clause written into Canada’s constitution to allow discriminatory rules to remain in effect for five years notwithstanding certain articles in the Canadian Charter of Rights and Freedoms. It is largely the court’s measure of the effect of the Notwithstanding Clause that decided the outcome of the case.

I knew that no matter WHAT the court’s ruling, someone would appeal the decision. That someone is the Quebec government and it is unfortunate because for the most part, the Quebec government won the case.

Bill 21 is still in effect, and teachers and other people hoping for the stability that comes with public employment have had their hopes dashed, with one exception. The court decided that Bill 21 remains valid due to the province’s use of the Notwithstanding Clause, with the exception of English schools, which are constitutionally protected by a clause in the constitution that isn’t covered by the Notwithstanding Clause, as well as the National Assembly. It is this aspect that the government plans to appeal, claiming that this exception divides Quebec when the province’s society should be united.

William Korbatly, a lawyer, feels the government’s claim that the judge’s ruling split Quebec is erroneous and dishonest.

“[I]t’s the law 21 that did that by making some Quebeckers lesser citizens than those who think of themselves (as) superior or have more privileges just because they are part of the cultural majority. That being said, we cannot deny that a large part of Quebeckers have serious problems and are very allergic to any religious manifestation in public spaces. Thus, politically speaking, that law should be put to the courts’ authorities and they will decide what is constitutional and what is not.”

Unfortunately despite Quebec’s ongoing teacher shortage, English schools in the province will still be subjected to Bill 21 pending appeal.

Carolyn Gehr, an Orthodox Jewish woman and teacher with the Montreal English School Board who wears and headscarf and submitted an affidavit with the other plaintiffs had some choice words about the legal decision keeping the law in force for now.

“I feel horrible for the prospective teachers who enthusiastically applied to the English school boards who desperately need them, only to find out in a day or two that their hopes were dashed yet again, and that this ruling does nothing for them for the foreseeable future. The fact that the government is fighting this so vociferously reinforces in me the idea that I’m not really wanted here, especially in that I’m only allowed in my job as I am because ‘Oncle Francois’ magnanimously grandfathered me in so as not to offend the sensibilities of people who don’t like to see someone fired for no reason.”

M. I. a Muslim teacher working in the private sector who no longer wears her hijab for personal reasons spoke of why she chose to take it off.

“I grew up in a moderately conservative Muslim family and the choice to wear the hijab was mine to make and I chose to wear it until about a year ago. Why I chose to take it off was a completely personal choice because I was no longer wearing it for religious reasons. It just provided me with a sense of comfort and not wearing it felt like going out without my pants on since I had worn it for so many years.”

On Bill 21, she says she and most of her community were very concerned. There was this feeling that this sort of law would never happen in Canada and most members have been directly or indirectly affected.

“I know the law adversely affects all religious communities but as a Muslim woman who used to wear the hijab my feelings are very strong when it comes to the effect the bill has on the women in my community. I find this law to be discriminatory, anti-feminist and anti-human rights. As a woman, I cannot accept that someone can have any say in how I choose to cover myself. I am well-educated and have never been forced by any part of my religion and can say for a fact that his holds true for most women in my community.”

M.I. says the Muslim community is one of the fastest growing minorities in Quebec and that the law, like the hijab ban in France, is just a way of keeping minorities under control. She points out that this open hostility has just led to more anger and extremism among Muslims in France than ever before. Adding, like Carolyn Gehr, that Bill 21 made her feel she didn’t belong.

“I am many things: Iranian, Muslim, Canadian and a Montrealer but a Quebecker I am not. I no longer feel any pride in that.”

Francois Legault and the Coalition Avenir du Quebec and others with clear and open hostility towards visible and religious minorities in Quebec represent the worst elements of Canadian and Quebec society. A society that buys into the narrative of white victimhood and denial of a more honest history that includes everyone who contributed to the great society we have today.

In metropolitan areas like Montreal, more and more people find this attitude dangerous and even laughable and recognize that those who support it can either embrace the diversity that enriches our food and other aspects of our culture, or die with the dinosaurs. That said, let the government know their decision to appeal is a frivolous waste of Quebec tax dollars when there’s a pandemic and a housing shortage to address. The fight’s only over when we the people say it is, so keep fighting.

Featured image of the Palais de Justice in Montreal by Jeangagnon via Wikimedia Commons

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It’s been a tough year. A virus is killing people left and right, and Quebec is under curfew from 8 pm to 5 am every day in an attempt to curb its spread. Leaders have had to make tough choices, and that includes Côte-des-Neiges— Notre-Dame-de-Grâce borough mayor Sue Montgomery.

In addition to running the borough through the pandemic, Montgomery has been dealing with issues with Montreal Mayor Valérie Plante that culminated in Montgomery’s expulsion from Plante’s party, Projet Montréal and her victory is Superior Court against the City of Montreal in December 2020. I had an opportunity to speak to Montgomery by phone about the pandemic and her recent legal victory.

We spoke just after Quebec had announced the curfew. When asked about the new rules, Montgomery pointed out that no one has ever been through a pandemic like this before. She spoke of how adherence to the new measures speaks to a broader sense of civic responsibility among the citizens of the borough.

“I understand the frustration with people…We’re all tired, we’d like get back to work, but the bottom line is that everyone has to do their bit,” she said, repeating the public health guidelines of hand-washing, mask wearing, and social distancing. “The sooner we all start doing that, the sooner we can get back to normal.”

As to what role the borough has in the implementation of public health guidelines, Montgomery points out that the province sets the rules and municipal governments are there to play a supportive role. The borough’s activities include supporting community organizations that help the less fortunate and vulnerable, mentioning the unemployed, elderly, and disabled. She noted that since the start of the pandemic, the demand at food banks has skyrocketed.

Montgomery mentioned that the unusual circumstances created by the pandemic have brought to light certain issues, such as the need for affordable housing to combat homelessness, and places for people to be able to relieve themselves with dignity, as safety measures have made it impossible for people to avail themselves of toilets in restaurants and cafes. The latter is not only a disability issue, but also a sanitation issue.

Regarding her recent Superior Court victory, Montgomery’s feelings are mixed: she’s thrilled at her win and she’s saddened by the fact they had to go through it.

For those of you who don’t know what led to Montgomery’s expulsion from Projet Montréal, here’s a quick summary:

Sue Montgomery was elected Borough Mayor of CDN-NDG in November 2017 as a member of Valérie Plante’s Projet Montréal. When she took office, she brought with her Annalisa Harris, her chief of staff.

Harris and the Borough Director, Stephane Plante (no relation to the mayor) clashed, with the latter claiming psychological harassment by the former. The City of Montreal ordered a report that they claimed confirmed psychological harassment by Harris of the Borough Director and Mayor Plante demanded that Montgomery fire her.

Montgomery refused, requesting to see the report first. The City of Montreal refused to provide it, and Montgomery refused to fire Harris without proof of misconduct.

In response, Plante kicked Montgomery out of her party. After numerous attempts to settle the dispute amicably, it ended up in court.

The Superior Court, presided over by Judge Bernard Synnott, ruled in Montgomery’s favor, confirming the claims of psychological harassment by Harris were bogus, but also affirming elected officials’ authority over bureaucrats like the Borough Director, and allowing her access to the aforementioned report.

The City of Montreal had until January 11, 2021 to appeal the decision, but there’s no news of them filing an appeal.

Despite every road block, Montgomery is positive about all she’s been able to accomplish. As for Plante’s role in the events leading up to the legal decision, Montgomery has some choice words:

“Had Valérie Plante done her job from the get-go and read this report about so-called harassment, we wouldn’t be in this situation. Because of this court procedure, I have now been able to get the report and there is nothing in there that could even be remotely considered psychological harassment. There’s been a lot of effort, a lot of money, a lot of drafts throughout this last year because Valérie Plante didn’t do her job… Valérie should have supported me the way I supported Annalisa. She preferred to not take a stand.”

Montgomery says she stood by Annalisa Harris because it was the right thing to do, and rightfully points out that to fire her without evidence would have been illegal under Quebec labor law. She feels she handled it as best she could. Montgomery gave Annalisa Harris a choice as to whether to fight the accusations or not because the borough mayor would not fire her, speaking highly of her chief of staff’s abilities.

Montgomery knows that the issues leading up to her victory in court will still need to be addressed but she is prepared to offer an olive branch to the City of Montreal and Mayor Plante. With the municipal elections in November 2021, Montgomery confirmed that she is running again and is creating a new party, though the name of it is still in the works.

Featured Image: Sue Montgomery running for CDN-NDG Borough Mayor in 2017 (photo by Samantha Gold)

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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

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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.