Quebec bill threatens careers of hijab-wearing lawyers

For years, young Quebec lawyer Nour Farhat has dreamed of being a government lawyer of any kind, especially a Crown attorney.

To boost her chances, the Montreal native returned to school after being called to the bar in 2017 to do a master’s in criminal law, a degree she expects to finish in July.

By then, however, Bill 21, proposed secularism legislation that would ban many public employees in Quebec from wearing religious symbols in the workplace, will likely be law.

If that is the case, Farhat, a Muslim who has worn a hijab since age 15, will be faced with a gut-wrenching decision.

“Either I remove my hijab and accept this flagrant violation of my rights under the Canadian and Quebec charters of rights and freedoms or I find another line of work,” says Farhat, who recently wrote an open letter against Bill 21 on Droit-Inc, Quebec’s popular French-language legal news website.

“In all my years of law school and in the 150 times I’ve worked in courtrooms in more than 10 cities across Quebec, no one — not a professor, a lawyer, a judge or a court clerk — has ever made a negative comment about me or my hijab or said that one day a law might pass that would effectively ban me from the courtroom. I can’t believe what’s happening.”

Farhat is not alone. In addition to the handful of other Muslim women lawyers in Quebec who wear a hijab, lawyers of many other faiths who wear religious-related clothing, cosmetics or jewelry in their everyday lives are facing the same dilemma.

“My sympathy is entirely with the attorneys in hijab,” says eminent Montreal human rights lawyer Julius Grey. “This is an example of the gratuitous injustice and cruelty of the proposed law.”

According to Grey, the religious garb-prohibiting provisions of the bill, which is the subject of public hearings at the National Assembly in Quebec City this week and next, would extend to lawyers working in courtrooms and tribunals of every stripe in la belle province.

“Some would surely interpret it that way because a lawyer is an officer of the court,” says Grey. "Certainly, Crown attorneys and government lawyers will be included."

Grey says court challenges will be needed to remedy what he sees as Bill 21's many ills.

He alluded to the case of Rania El-Alloul, a Montreal woman who was ordered by Court of Quebec Judge Eliana Marengo in 2015 to take off her hijab if she wanted a case involving her impounded car to proceed.

Grey represented El-Alloul in appeals to both the Superior Court of Quebec and Quebec Court of Appeal.

In a unanimous decision that was rendered just days after the right-wing Coalition Avenir Québec won a majority government on Oct. 1, the three-judge appeal panel ruled in favour of El-Alloul.

"No party challenges that the courtrooms of the Court of Quebec — and for that matter all courtrooms in Quebec as throughout Canada — are spaces of religious neutrality," the judges wrote.

"This does not mean, however, that judges may rely on the neutrality of the courts alone as a justification for preventing litigants from accessing a courtroom simply because they are expressing sincerely held religious beliefs."

The appellate judges also found that Quebec court rules don’t forbid religious head scarves.

"In light of the multi-confessional fabric of Quebec society, it is usually quite easy for a judge to recognize the difference between suitable religious attire and those cases where the individual litigant or witness is showing lack of respect for the court by his or her choice of clothing," the judges ruled.

"The types of religious clothing worn in Quebec are not numerous and are not generally difficult to identify. For quite a long time now, the courts have had little difficulty accommodating these types of attire."

Bill 21, however, would change all that. If adopted, which is likely given the new CAQ government’s stated desire to vote on the proposed legislation this month or next — and to invoke the notwithstanding clause if the law is found to be unconstitutional in the legal challenges that are sure to follow — the secular law would prohibit the wearing of religious symbols by all Quebec public sector employees in positions of authority, including teachers and lawyers.

“A religiously neutral state must protect the rights and liberties of all its citizens without discrimination based on religion or the absence of religious beliefs,” Coline Bellefleur, another hijab-wearing Quebec lawyer, said in a speech at an anti-Bill 21 rally in front of the Montreal courthouse on Sunday, an event where Farhat also spoke.

“Saying that the application of a law that applies to all is proof of neutrality and equality shows a lack of knowledge about the basic judicial principles in question.”

For its part, the Barreau du Québec recently declined the invitation to appear at this week’s public hearings.

Instead, the provincial lawyer’s regulator has issued a two-page letter in which it states its opposition to Bill 21 by referring to arguments it made in a written submission in 2013 over Bill 60, the then-Parti Québecois government’s proposed Quebec Charter of Values.

In the letter, bar president Paul-Matthieu Grondin writes that “the banning of religious symbols as described in Bill 21 is, in our opinion, a violation of the fundamental rights and freedoms under both the Canadian and Quebec charters.

“That being said, the bill contains several derogation clauses that would get around the liberties decreed in articles 2 and 7 to 15 in the Canadian Charter and articles 1 through 38 in the Quebec charter.

“It’s up to the government to invoke those derogations and explain their reasons. [But] it seems clear to us that their use will have concrete impacts for the people involved, whom we are asking to choose between particular elements of their faith and their professional careers.”

Editor's Note: this article was updated to clarify that the Barreau du Québec did not ask to appear at this week’s public hearings, but instead were invited and declined.