Barred From Teaching by Bill 21

Fatima Khan wanted to be a teacher since she was a little girl. 

In 2019, she enrolled at Concordia University for a degree in art education, to become a certified art teacher able to teach in both elementary and high schools. But between enrollment and attending her classes came a major blow to her future as a teacher in Quebec: the province passed Bill 21, the Act respecting the laicity of the State, in June 2019. 

It was a blow because Khan, a Muslim woman, wears a hijab, and the law prohibits certain public sector employees from wearing religious symbols — like teachers.

She was aware of the proposed legislation when she applied to Concordia in 2018. Back then it was just a Bill being deliberated in Quebec’s National Assembly. 

“I don’t think this is going to last,” she remembers thinking of the Bill at the time. She told herself that she was in Canada, where the Charter of Rights and Freedoms protects minority rights, so a law that discriminates against people like her would not make it off the floor of the National Assembly. “You would think this thing would never pass.”

But it did, thanks to the Coalition Avenir Québec’s majority and the preemptive use of the Notwithstanding clause, shielding it from most constitutional challenges. She began her degree with the cloud of this new legislation hanging above her. 

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Now a law on the books in Quebec, the Act respecting the laicity of the State is fully in effect while the legal challenge to it makes its way through the courts. 

The Supreme Court of Canada Justices are deliberating whether the court will hear the case, but last month one Justice, Mahmud Jamal, had to withdraw from those deliberations. His recusal came following calls from Quebec’s attorney general and others for him to step away from the proceedings since he previously served as chairman of the Board of Directors for the Canadian Civil Liberties Association (CCLA), one of the applicants challenging Bill 21.  

In a statement following his recusal, Justice Jamal made it clear that while there is no legal basis demanding his withdrawal and he disagreed that there was any reasonable apprehension of bias on his part, he was withdrawing from the deliberations to avoid criticisms of bias directed at the Court.

“It’s worth noting that this is actually quite a contentious thing,” says Emmett Macfarlane, a Professor at the University of Waterloo. “Just because Justice Jamal previously served on the Board of Directors is not the same as any direct involvement in the specific case.”

Macfarlane views the accusation of bias against Justice Jamal as being just as much a political act as it is a legal one.

“It’s an assumption of bias based on a rather tenuous institutional affiliation,” he explains. “If he had been a lawyer working on the case itself or certainly a party to the case, that’s one thing. 

“But the idea that just because judges might have past service on a nonprofit advocacy organization, or maybe they did advising work for a government — are we going to be pulling judges off of cases because of a tenuous assumption of bias that isn’t direct or clear?”

A Board of Directors is tasked with overseeing the general direction and future planning of an organization. It’s reasonable to trust Justice Jamal’s assertion that he never intervened in the specific case of the CCLA’s challenge to the Laicity law, he says. 

“If we had a Supreme Court judge who wore a headscarf, would there be pressure on her to step aside?”

***

A group of women protest the passing of Bill 21. PHOTO: Flickr

While Khan completed her degree, she was hopeful the law would be struck down in the courts, clearing the way for her to teach in the province she has lived in since she was 12. 

She followed the legal cases brought against it, and she was encouraged by the 2021 result of the first trial in Quebec’s Superior Court which found that the law shouldn’t apply to English school boards under the Charter’s protections for minority language schooling. 

That finding was stayed as the applicants, the CCLA and the National Council of Canadian Muslims (NCCM), applied for an appeal. 

As all of that was happening, Khan worked her way through school. For her degree, she needed to complete four unpaid internships in elementary and high schools. She did three of them at St. John’s School in Saint-Jean-sur-Richelieu, where she and her siblings attended high school. It was a comfortable environment for her: she already knew the principal and many teachers, and they knew her and her family. 

As a student-teacher, she was not barred from completing her internships with her hijab, and they went on without a hitch — until she submitted her forms to the school to begin substitute teaching, which student-teachers can do as of their third internship. It’s a way to gain some income while completing the unpaid internships, all while getting more experience as a teacher.

Then came the first real snag: the school’s principal, upon receiving her forms applying to become a substitute teacher, called Khan into her office. She began speaking about Bill 21 and the constraints on hiring teachers who wear religious symbols. 

“If we were to hire you, would you be willing to remove your hijab on the days you show up to school as a substitute?” Khan says the principal asked her during this conversation in September 2023. 

Essentially, she was being asked to remove her hijab when she worked as a substitute, while still being able to wear it while working the hours towards completing her internship. It was framed as a question, but for Khan, there was only one possible answer. She could not renounce the symbol of her faith that is her hijab, not on the days she would substitute, nor any other day. 

“If the law were to be challenged, I would hire you right on the spot,” Khan says the principal told her. “You would have my full support.”

For Khan, this response from the principal, who she had known for years by that point, was like salt rubbed into the wound left by Bill 21. 

“In that moment, I felt so confused,” she says. “Why would I need your support then? I need it now. I’m being systematically discriminated against. If anything, you should speak up for me now.”

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A candid photo of Fatima Khan taken by a student as she completed an internship as part of her studies to become a teacher. PHOTO: Courtesy Fatima Khan

“This is one of the really heartbreaking parts of this legislation,” says Harini Sivalingam, Director of the Equity Program at the CCLA. “There’s a whole generation of young people that are growing up in Quebec with the idea that there are certain professions in the public service that they’re just excluded from because of their religious identity.”

The CCLA and NCCM launched their constitutional challenge of the law the day after it first passed in June 2019, along with Ichrak Nourel Hak, a Muslim woman who, like Khan, was studying to become a teacher when the law was passed. 

The result of that challenge was the 2021 ruling that the law interferes with Section 23 of the Charter, which protects minority language schooling and the right of the minority language community to manage its educational institutions — in this case, the English public school system in Quebec. The Notwithstanding clause does not apply to all sections of the Charter, like Section 23.

Judge Marc André Blanchard interpreted Section 23, as well as legal precedence on it at the Supreme Court of Canada, to mean that this right to self-management extended to deciding who can teach. He also found that the law should not apply to elected officials as this interfered with citizens’ right to elect the representative of their choosing. 

But the results of that finding never went into effect, after the CCLA and NCCM appealed in May 2021. In February of this year, the Quebec Court of Appeals ruling overturned Justice Blanchard’s findings. 

“The (Quebec) Court of Appeal judges take a much narrower reading of the Supreme Court of Canada precedence on what it means to manage minority official language schools,” explains Robert Leckey, Dean of the McGill University Faculty of Law. Leckey specializes in constitutional law. 

At the Court of Appeals, Section 23 was interpreted to apply only to the language of instruction and operation of the schools, and not including aspects like hiring and institutional culture, he says. 

“That was really a disappointing decision,” says Sivalingam. “So we were quick to file a leave to appeal asking the highest court in Canada, the Supreme Court of Canada, to look over the case and the decision.”

Though the preemptive use of the Notwithstanding clause severely limits the type of constitutional challenges that can be argued against the legislation, Leckey says that some avenues are still open.

One such avenue is Section 28 of the Charter: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

Though it hasn’t proved successful in Quebec’s Superior Court or Court of Appeals, it’s a fundamental part of the CCLA and NCCM’s case against the law. 

“We’ve seen that this law has particularly disadvantaged and disproportionately affected Muslim women, along with other religious minority groups,” says Sivalingam. She highlights that those most affected are generally racialized and often are newcomers to Quebec. 

“Many of those affected communities have also reported a decline in safety within the public sphere, and that’s hindered participation in social and political activities,” she says. “There’s been increases in instances of physical and verbal threats.”

A recent report by the NCCM found that 73 per cent of Muslim women polled say that Bill 21 has limited their future work prospects, and 90 per cent say that Quebec is a less welcoming place to work because of this legislation. 

Seventy-one per cent of the Muslim women surveyed considered leaving the province for work, the report highlights.

This is the case for Khan. After completing her studies and receiving her certification to teach in Quebec, she’s now going through the process of getting certified to teach in Ontario. 

The English Montreal School Board (EMSB) and the Fédération autonome de l’enseignement (FAE), a teachers’ union representing over 66,500 workers, also filed legal challenges to Bill 21 back in 2019, which were joined together with the CCLA/NCCM case through trial.  

Both the EMSB and FAE have filed leaves to appeal at the Supreme Court of Canada, asking it to take up the case. 

“As a woman who wears a hijab here in Quebec, it’s never been easy.” Khan says. “Despite all that, I try. I still do my best, and I still reach for my goals.

“Despite my qualifications, despite me living here for so long — all my life, basically — despite being a good citizen, a good student, a good teacher, a good human, feeling somebody else treating you based on what you’re wearing, it’s just upfront racism and so disappointing.”

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Stickers calling for solidarity with Muslim women appeared in Montreal in the aftermath of Bill 21.

This year, five years after the Act respecting the laicity of the State was passed into law, the Quebec government passed legislation renewing the use of the Notwithstanding clause. 

The clause comes with a five-year limit and it must be re-enacted by passing legislation again. This time limit is the mechanism set out in the Charter to prevent governments from abusing the use of the clause. 

In those five years between enacting and renewing the clause, the government has to face the electorate and they either get to remain in power or are voted out. The logic goes that citizens will either punish or reward the government for using the clause. But in practice, it’s not that simple, Leckey points out.

“Voters always have multiple issues on their minds, so there are limits to the theory,” he says. 

Though Bill 21 is contentious for many in Quebec, no punishment came the government’s way for having enacted it. The CAQ was elected with a majority in 2018, passed Bill 21 in 2019, and then faced the voters again in 2022 — and won a super-majority in the National Assembly. That cleared the way for them to re-enact the Notwithstanding clause in 2024. 

Sivaligam says the CCLA is concerned about the increasing use or threat of using the Notwithstanding clause by governments in Canada to shield legislation from constitutional challenges.

“What we have been arguing is that whether or not the Notwithstanding clause was used, there are fundamental rights that are part of the constitutional architecture, part of the rule of law, part of democracy, that you cannot violate,” she says. “There are still some fundamental rights and freedoms that are core aspects to a democracy — and those have real meaning.” 

With the leave to appeal filed at the Supreme Court of Canada, the Court will decide whether or not it will review the case. Meanwhile, the law remains in effect.

Though Khan was able to complete her studies, including her internships, and get her certification in Quebec, she is out of options in the province — all while a staffing shortage plagues the public school system.

At the beginning of the school year in September 2023, Education Minister Bernard Drainville said the province was short some 8,000 teachers. New numbers from the end of the school year, May 2024, show that 471 positions were still unfilled — this after some 7,949 people were hired as of February under a special authorization to teach despite not being legally qualified. 

The number of unqualified teachers will only grow: the province is planning to increase the hiring of non-legally qualified teachers by 50 per cent in the next three years. 

Khan, a fully qualified teacher, says with dismay: “Being a teacher, you go through a lot of processes. You have to have to have your criminal background check, you have to have your qualifications. (The government is) just going to start hiring unqualified people? That’s a risk to the kids, that’s a risk to the community, to our environment, to our society.”