Recently graduated B.Ed. student Amrit Kaur speaks during a news conference with members of the National Council of Canadian Muslims in Montreal, Monday, June 17, where plans were outlined to lawfully challenge the Quebec government's Bill 21.Graham Hughes/The Canadian Press
Twelve hours after the Quebec government passed a law banning some public servants from wearing religious symbols, a Muslim student has launched a court challenge, saying it is a blatant violation of fundamental civil rights.
Ichrak Nourel Hak, backed by the National Council of Canadian Muslims, the Canadian Civil Liberties Association and Montreal lawyer Catherine McKenzie, filed the lawsuit on Monday morning asking Quebec Superior Court to suspend the law.
The lawsuit says the new law, passed late Sunday night, is vague, invites arbitrary application, excludes minorities from certain professions and encroaches on federal jurisdiction. Ms. McKenzie’s legal pleadings describe these legal failings as an attack on the fundamental architecture of the Constitution, including equal application of the law and separation of provincial and federal jurisdiction.
The lawsuit does not challenge the law as an attack on freedom of religion. Premier François Legault’s government used the notwithstanding clause to protect it from this most obvious route of challenge under the Charter of Rights and Freedoms.
Ms. Nourel Hak is studying to be a French teacher and expects to graduate in 2020. An immigrant from Morocco, Ms. Nourel Hak has done all of her studies in Quebec. Ms. Nourel-Hak “is also a practicing Muslim whose faith forms an integral part of her identity,” and wears the headscarf known as the hijab, the lawsuit states.
“The act does not simply impact Ms. Nourel Hak’s professional aspirations. It makes her feel deliberately excluded from Québec society, sending her the message that the only way she can truly belong and demonstrate that she shares Québec’s values is by taking on the appearance of the majority.”
Ms. Nourel Hak was not available for interviews because she was writing exams, her representatives in the lawsuit said. Instead, she sent a written statement. “The law is stealing my dream and sending a clear message I am not a valued part of Quebec society,” she said. “All my dreams of being one of the best teachers in Quebec have evaporated in an instant.”
The lawsuit says the ban on religious dress violates other Constitutional rules beyond the Charter of Rights and Freedoms. The law is “in substance criminal legislation” that enforces methods of religious observance, a power that falls outside provincial jurisdiction, according to the lawsuit. It also states the law is “impermissibly vague and impossible to apply consistently.”
Patrick Taillon, a law professor at Laval University, described the arguments as “very audacious.”
“The real heart of the debate is religious freedom, but the constitutional exemption, the notwithstanding clause, makes it such that it doesn’t apply, so they have to approach it via many detours,” Prof. Taillon said. “The result is we have arguments that are creative, audacious, not simple. Slightly revolutionary, in fact. I don’t think it will work, but it’s impossible to predict for sure.”
Amrit Kaur, a Montrealer and Sikh woman who wears a turban, graduated with a degree in education from the University of Ottawa on Sunday, hours before the law passed. The 28-year-old is now considering leaving Quebec. “The fact this was done at 10 o’clock at night with the notwithstanding clause shows how unjust it is,” she said. “People who wear religious symbols don’t just take them off. It’s not a hat, it’s an article of faith, of deep personal conviction.”
Simon Jolin-Barrette, the minister who introduced Bill 21, which bans newly hired teachers, police officers, government lawyers and others in positions of authority from wearing symbols of religious faith, said the government will defend the law “with firm conviction.”
He said the province settled on a compromise between hardliners who wanted a broader ban and the laissez-faire multiculturalist attitude of the rest of North America. “I am extremely confident our law is valid,” he said. “We used all the legal tools available to make sure our law is applied and is valid and that during any legal challenges it remains valid.”
Mr. Jolin-Barrette said the Quebec National Assembly has the right to “decide how to organize the relationship between the state and religions. It’s the legislature that defines secularism in Quebec, that important societal choice, and not courts that decide.”
In Ottawa, Justice Minister David Lametti said the government has not decided if it will intervene in the case or any others that might follow. “We don’t believe it’s up to a government to tell people what they should wear or what they shouldn’t wear,” Mr. Lametti said, adding that Canada is already a secular state.
Prof. Taillon said many avenues of challenge remain. Legal experts have suggested a challenge based on gender discrimination might work. English school boards could argue the law is contrary to anglophones’ right to control their education. The notwithstanding clause itself could be challenged, a route Prof. Taillon described as “incredibly ambitious and difficult.”
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