Rather than have those from outside Quebec providing monetary support to fund a legal challenge — which would likely backfire — it should really be up to the federal government, which has jurisdiction, to intervene.

Bill 21 has resulted in one Quebec teacher losing her job because of her hijab. Credit: Nada Hanifah / Unsplash

The nation‑wide debate over Quebec’s Bill 21, which passed in 2019, has been reignited following the removal of a Quebec elementary school teacher from her classroom. Pursuant to the provincial law, the teacher, Fatemeh Anvari, was moved to an alternate non‑teaching role this month because she wears a hijab. In response to public outcry, Quebec’s Premier François Legault stated that Anvari should not have even been hired in the first place given Quebec’s Bill 21.

Bill 21, known as the “Act Respecting the Laicity of the State,” restricts public employees, including judges, lawyers, police, and teachers, from wearing religious symbols. It also restricts peoples’ ability to access public services if their faces are covered. The purpose of the Bill is to preserve Quebec’s status as a secular state, and is based upon the principles of “equality of all citizens” and “freedom of conscience and freedom of religion.” In practice, however, the Bill is discriminatory and excludes Muslim women from full participation in society.

In short, it is a racist, xenophobic and Islamophobic law passed under the guise of secularism. It further imbeds racist policies into already racist Canadian institutions, and further marginalizes vulnerable groups. And it disproportionately impacts Muslim women, who already experience increased violence in this country. Islamophobic hate crimes have risen in Canada, and these hate crimes are more likely to involve female victims than other hate crimes.

On December 13, commenting on Fatemeh Anvari’s situation, Prime Minister Justin Trudeau stated that the impact of Bill 21 “is no longer a theoretical issue” now that it has led to the removal of someone from their teaching position. With all due respect to the Prime Minister, the impacts of Bill 21 have never just been theoretical. In fact, research has shown that the implementation of Bill 21 has directly resulted in increased racism against religious minorities in Quebec.

Discriminatory laws like Bill 21 do not exist in a legal vacuum; they reinforce and perpetuate stigma and hate in our communities. By marginalizing and removing entire groups of people from positions of authority, the law is demonstrating, to Canadians and to the rest of the world, that these groups are not seen as worthy of these positions and are not fully accepted into Canadian society. It adds fuel to a hatred that is already burning in Canada – a hatred that has led to the Quebec City mosque attack in 2017, the fatal stabbing of a caretaker at a Toronto mosque in 2020, and, more recently, the vehicular murder of a family in London, Ontario.

A brief history of Bill 21

In order to fully appreciate the debate surrounding the Bill, it is important to understand how it came into law and how it has survived legal challenge.

The National Assembly of Quebec passed the law on June 16, 2019, with considerable opposition. It has been clear from the beginning that Bill 21 likely violates the Canadian Charter of Rights and Freedoms, including section 2(a), the freedom of conscience and religion.

Anticipating a challenge to the law, the government of Quebec invoked the notwithstanding clause (section 33) of the Canadian Charter to prevent judicial intervention. Section 33 basically allows provincial legislatures and parliament to shield a piece of legislation for five years, even if it is in violation of Charter rights. In other words, the law continues to operate even though it could, upon judicial review, be deemed in violation of the Charter and, consequently, “of no force or effect.” The notwithstanding clause only applies to certain Charter rights: section 2 and sections 7‑15.

Simply put, this clause allows governments to infringe upon minority rights with no clear or reasonable justification, and it is a clause that is rife with opportunities for government abuse. What purpose could such a clause possibly serve if section 1 of the Charter already provides for reasonable limits on Charter rights? What is the point of enshrining Charter rights if provincial legislatures and parliament can so easily override them for five years at a time, with no judicial intervention? These are questions that I will leave to the Constitutional law experts, but I believe that they are worth asking in the wake of Bill 21.

Following Quebec’s invocation of section 33, the Canadian Civil Liberties Association (CCLA) and the National Council of Canadian Muslims (NCCM) challenged the law as unconstitutional.

Judge Blanchard of the Quebec Superior Court upheld the Bill in April, 2021, but struck down the law as it applied to English school boards and members of the provincial legislature (due to protections under sections 3 and 23, for which the notwithstanding clause cannot apply). Although critical of Bill 21, Blanchard upheld the rest of the law because Quebec was within its right to invoke the notwithstanding clause and insulate Bill 21 from Charter scrutiny.

In response to the Quebec Superior Court decision, the CCLA and NCCM have filed legal submissions against Bill 21 at the Quebec Court of Appeal, and it is likely that this case will go all the way to the Supreme Court of Canada for an ultimate decision.

Response to teacher’s removal

In the wake of Fatemeh Anvari’s removal from her classroom, mayors from around the Country, including Brampton, Calgary, and Toronto have either pledged funds, or are considering contributing funds, to the legal challenge in Quebec. Federal leaders have yet to commit to intervene in the case and, Erin O’Toole, the leader of the Conservative Party, has asked his MPs not to publicly criticize the Bill at all.

While I applaud the City of Brampton and other municipalities for expressing disdain for Bill 21, as we all should, providing monetary support from outside Quebec to fund a legal challenge inside Quebec may backfire. It could shift the debate away from the Charter legality of the Bill itself, and towards a conversation about English‑Canadian cities taking steps to affect the laws within Quebec. As a result, it should really be up to the federal government, which has jurisdiction, to intervene.

In spite of the Bill’s obvious discriminatory impact, Prime Minister Justin Trudeau has not firmly committed the federal government to any such intervention, stating that he does not want the federal government’s opposition to turn the issue into a fight between Ottawa and Quebec. But, given the dire consequences of the Bill on the safety and fundamental rights of Muslim Canadians, that fight needs to happen.