EMSB to appeal Bill 21 ruling to Supreme Court of Canada

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The English School Board of Montreal is pressing ahead with its legal challenge of Quebec’s secularism law, voting Wednesday night to ask the Supreme Court of Canada to overturn a recent Quebec Court of Appeal decision that upheld the law known as Bill 21.

Under the law, school boards are forbidden from hiring teachers who wear hijabs or other religious symbols.

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The EMSB’s decision to go to the Supreme Court came six weeks after the Quebec Court of Appeal ruled the law should apply to English school boards.

At a special board meeting, 12 commissioners voted in favour of the move, one voted against and there was one abstention.

“History has shown that when governments deny people jobs and positions based on how they looked, how they dressed, due to their faith, it’s only a precursor for even worse things to come,” said Commissioner Pietro Mercuri.

“Bill 21 excludes people from obtaining certain jobs and positions based on what they wear, according to their faith.

“Not continuing a fight against Bill 21 (would be) a profound disrespect against previous generations that have fought to protect people who have been marginalized and made to feel unwanted by their government.”

The lone commissioner to vote against the decision, Agostino Cannavino, raised questions about the costs.

The board has spent $1.3 million on the court challenge over the past five years.

“I’m not in favour of this legislation that limits rights and freedoms,” Cannavino said. “However, I’m against spending all this money, money that we’re depriving our students and our schools of using.”

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Board chair Joe Ortona told the meeting that the cost must be put in perspective. Over the past five years, the board has spent more than $2 billion.

“The idea that we are depriving students of services is erroneous,” Ortona said. “We have the highest success rate in the province of Quebec, year after year. Explain to me how that would be possible if we’re depriving our students of services.”

Commissioner Maria Corsi said the money is well spent.

“We’re either in favour of defending minority rights (and) the rights of religious minorities or we’re not,” she said. “Do we stop (after spending a certain amount) and say oh well, that’s enough, it’s not worth it to defend rights anymore?”

Bill 21 came into force in 2019. It bars some government workers deemed to be in positions of authority, including judges and police officers, from wearing religious symbols on the job.

Premier François Legault’s Coalition Avenir Québec government pre-emptively invoked the Constitution’s notwithstanding clause, which allows governments to override some fundamental rights.

The EMSB took the Quebec government to court, arguing English schools should be allowed to hire teachers who wear religious symbols because English boards have special status under the Canadian Constitution.

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In April 2021, Quebec Superior Court Justice Marc-André Blanchard gave the EMSB a partial victory.

While warning about excessive use of the notwithstanding clause rights, Blanchard upheld most of Bill 21 but carved out an exemption for English school boards.

However, the judge rejected the EMSB’s contention that the law violates gender equality rights in the Charter.

While that decision is under appeal, the EMSB must comply with the law, meaning it can’t hire teachers who wear religious symbols.

In February 2024, the Quebec Court of Appeal overturned Blanchard’s decision regarding English schools.

The court found that Bill 21 “does not affect the educational language rights that (the Canadian Constitution) confers on citizens belonging to Quebec’s English linguistic minority.”

Reacting to that decision, Joe Ortona, the EMSB’s chair, said his board based its case against Bill 21 on previous judgments by the Supreme Court.

“The Supreme Court has for decades spoken unanimously about school boards’ powers of management and control over issues of language and culture,” he said.

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“We feel that religion and religious liberty are matters of culture for which we have the right to manage and control within our schools.”

Ortona said his “heart goes out to” teachers who want to wear religious symbols.

“We think that teachers should have the right to wear whatever they want and we should have the right to hire teachers without arbitrary criteria like what they choose to wear, which has absolutely no bearing on the quality of the education that children receive.”

In February, Legault hailed the appeal court decision as a “beautiful victory for the Quebec nation.” He said Bill 21 “guarantees” that people in positions of authority “are neutral and appear to be neutral.”

Secularism is a “collective choice” and “a principle that unites us as a nation,” he said.

Legault said Quebec will continue to use the notwithstanding clause “for as long as necessary for Canada to recognize our societal decisions, the Quebec nation. That’s non-negotiable.”

The ruling was also praised by the Mouvement laïque québécois, a group that promotes secularism.

The appeals court decision was “a great victory for English-speaking citizens, our English-speaking friends, because they were denied under the ruling of Quebec Superior Court the right to secular public services in English schools,” Guillaume Rousseau, a lawyer for the group, said in February.

He said the ruling makes it clear that the “notwithstanding clause is not something that violates rights, not something that goes against democracy. It’s part of our democracy and it’s up to our elected officials to decide.”

ariga@postmedia.com

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