Quebec Court of Appeal to evaluate whether secularism law unfairly targets Muslim women

As arguments wrapped at the Quebec Court of Appeal Wednesday for the legal challenge to the province's secularism law — known as Bill 21 — the panel of judges hinted that the case hinges on whether the bill disproportionately discriminates against Muslim women who wear the hijab.

"That's a tough question, but it's really at the centre of our preoccupations and that's why we asked it," Justice Yves-Marie Morissette said as the panel of three judges posed some final questions to lawyers to clarify their positions.

The Quebec government and several civil liberties and religious minority groups presented arguments last week and again Wednesday about a Superior Court decision last year, which upheld most — but not all — of the controversial secularism law.

The law enacted under the Coalition Avenir Québec (CAQ) government in 2019 prohibits public school teachers, police officers, government lawyers and a host of other civil servants from wearing religious symbols at work.

The CAQ pre-emptively invoked the constitutional notwithstanding clause when drafting the bill to protect it against legal challenges.

The clause gives provinces the power to override portions the Canadian Charter of Rights and Freedoms for renewable periods of five years.

A key argument of groups opposed to the law is that it discriminates on the basis of gender by disproportionately targeting Muslim women. Provincial laws that can be shown to be discriminatory on the basis of gender cannot be shielded by the notwithstanding clause.

The panel of judges Wednesday challenged both sides to clarify their positions on that key question.

'Intersectional discrimination'

Perri Ravon, lawyer for the English Montreal School Board, who made several points about Bill 21's disproportionate effect on Muslim women last week, was questioned about that by Justice Marie-France Bich.

"It seems the effect of Bill 21 on men and women differs depending on their religion. For Christians, it has a certain impact. If you look at Jewish persons, Sikh persons, or Muslim persons, it has another impact. From there, where do we go?" Justice Bich asked.

"If we look at who's being impacted, it's Muslim women. If we look at who's losing their jobs, it's Muslim women. If we look at who the law was designed for, it's Muslim women,"  Ravon replied. 

She noted that so far in the province, Muslim women who wear the hijab are the only people who've lost jobs or been denied employment due to Bill 21.

Justice Bich asked if it was possible those women were being discriminated against simply because of their religion and not because of their gender.

"This is a case of intersectional discrimination," Ravon replied. "Not all women or not even most women have to be affected to establish gender discrimination."

"Historically, it's more vulnerable subgroups of women that require constitutional protections," she said.

Province says no evidence of gender discrimination

Amélie Pelletier-Desrosiers, lawyer for the attorney-general of Quebec, argued there was no evidence that Bill 21 discriminates based on gender.

Pelletier-Desrosiers pointed out that most teachers are women and so it was normal, but not necessarily discriminatory, that they would be more affected by Bill 21.

Christiane Pelchat, the lawyer representing the feminist group Droits des femmes du Québec — which supports Bill 21 — picked up on this theme.

Pelchat pointed out that most police officers and judges are men, and so that it could equally be argued that the law discriminated unfairly against men.

Pelchat also took a shot at Ravon's arguments about intersectional discrimination, pointing out to the judges that intersectionality was not a recognized legal argument in Canada.

Deliberations expected to take months

Now that the arguments have wrapped, the panel of judges will have to decide whether to uphold the law or to strike down all or part of it.

Justice Morissette, when requesting a document from one of the lawyers, quipped about how long these deliberations might take.

"Take your time, because there's no way we'll have a decision next Tuesday," Morissette said.

Whatever the Court of Appeal decides, both the Quebec government and opponents of the law have said that it's likely they'll appeal the decision, and that it will ultimately be the Supreme Court of Canada who will have the final word on Bill 21.