Is Ottawa funding the challenge to Bill 21? Yes and no

The Bloc leader, Yves-François Blanchet, notably asked the federalist parties in Ottawa to prevent opponents of Bill 21 from having access to the Court Challenges Program (CCP).

Mr. Blanchet was raising a complex question.

Federally funded and managed by the University of Ottawa, the Court Challenges Program operates at arm’s length from government and does not disclose the identity of the organizations it funds.

The director of Court Challenges ProgramMarika Giles Samson explains that confidentiality makes it possible to avoid any interference in the decisions of the groups of experts who evaluate the applications for funding.

To better understand the sources of funding behind the challenge to Bill 21, Radio-Canada contacted the groups as well as certain lawyers involved in it and conducted research using the access to information law.

Here are the main conclusions:

  • No group had access to the Court Challenges Programaccording to their spokespersons and lawyers, because the program does not fund the challenge of provincial laws under its component devoted to the protection of human rights.

  • The English Montreal School Board (EMSB) has already spent more than $700,000 in legal fees to challenge Bill 21. The organization had qualified for funding from the Court Challenges Program in the field of the protection of language rights, without actually using it.

  • The Canadian Human Rights Commission, which is an intervener in the courts, paid $95,000 to the firm of lawyer Julius Gray to try to strike down the law. The Commission is federally funded, but operates at arm’s length from government.

  • Three groups will soon announce that they have come together to collect donations from people and groups who want to contribute to the legal fight against Bill 21 – donors that include some municipalities across the country. They are the National Council of Muslims, the Canadian Civil Liberties Association and the World Sikh Organization of Canada.

  • The total cost of the challenge at this stage of the proceedings is estimated at more than 2 million dollars by lawyers involved in the process. The bill to date has been mostly mopped up by the EMSB, a union of Quebec professors, and law firms that work for free or at a discount.

In effect since 2019, the State Secularism Act prohibits certain state employees in positions of authority from displaying religious symbols while performing their duties, including teachers. Quebec has used the notwithstanding clause – often called the notwithstanding clause – to limit legal challenge by those who would argue that the law is discriminatory and contrary to the Canadian Charter of Rights and Freedoms.

The challenge is being led by four plaintiff groups, with nine intervenors. The case is before the Quebec Court of Appeal and should be heard in the coming months. Everyone expects the case to end up in the Supreme Court of Canada. For the moment, Ottawa has not intervened in court.

Ineligible for CCP funding

Plaintiffs challenging the law all say they didn’t dip into the pot of Court Challenges Programwhich receives about $5 million from the federal government a year. The maximum funding to contest a case is $200,000 at first instance and $50,000 on appeal.

The issue, in the case of the Quebec law, is that the Court Challenges Program does not serve groups challenging provincial laws under its human rights protection stream, only those challenging federal laws.

Among the groups that were the first to challenge Bill 21 in court was the National Council of Canadian Muslims.

We have not obtained funding under the Court Challenges Program and have no intention of applying for it. »

A quote from Mustafa Farooq, President of the National Council of Canadian Muslims

Mustafa Farooq, President of the National Council of Canadian Muslims (archives)

Photo: Radio-Canada

The Canadian Civil Liberties Association confirms that it was not eligible for federal funding in this case.

The association’s executive director, Noa Mendelsohn Aviv, says the attacks on the Court Challenges Program serve above all to distract from the real issue, namely the harms caused by this law in particular to women from religious, ethnic or immigrant communities.

In December, teacher Fatemeh Anvari was reassigned to Chelsea Elementary School, north of Gatineau, after refusing to remove her veil at work as required by Law 21.

Demonstrators hold up posters opposing Bill 21.

A mobilization took place this winter after the reassignment of a teacher from Chelsea which occurred because of her hijab (archives).

Photo: Radio-Canada / Alexander Behne

Federally funded

The Canadian Human Rights Commission had publicly denounced Bill 21 in June 2019, when it was adopted. A few months later, she hired the firm Gray Casgrain, which works in parallel pro bono (for free) on this cause for the Network of Community Groups of Quebec.

Before the Court of Appeal, the Commission denounces what it considers to be a violation of women’s rights and the right to freedom of religion.

In her brief, she asserts that the purpose of the notwithstanding clause has not never been to call into question the fundamental principles of the Charter and to allow the adoption of a law which completely abolishes all the rights it protects, in particular the freedom of religion, expression, association and legality.

The Commission has spent $68,000 in legal fees to challenge the law in the Quebec Superior Court and $27,000 so far for the case that is before the Quebec Court of Appeal. According to the federal proactive disclosure site, the contract to Gray Casgrain was awarded without competitive bidding.

The Commission is independent of government and acts in the public interest. Its budget is allocated to it in the same way as other ministries and central agenciesexplains Commission spokesperson Véronique Robitaille.

English school board bill

To access funding for the Court Challenges Program in the context of challenging a provincial law, it must be in the linguistic field, according to the rules of the program put in place by the Liberal government of Justin Trudeau.

In 2020, the English Montreal School Board had indeed been deemed eligible for funding from the Court Challenges Programhaving qualified under the stream official language rights. The right to education in English in Quebec, for the English-speaking minority in the province, is protected by the Charter of Rights and Freedoms.

However, in the face of an outcry, the English Montreal School Board decided at the time to refuse the funding, saying it wanted to avoid finding itself in the middle of a dispute between the federal government and the Quebec government.

The English Montreal School Board therefore paid its own attorneys’ fees.

According to an access to information request made by Radio-Canada, the English Montreal School Board has paid $725,000 in legal fees to pursue this challenge so far. The firm representing the English Montreal School Board before the courts is Power Lawyersa firm that has expertise, among other things, in the area of ​​language rights.

The English Montreal School Board had won a first round against Bill 21 last year, when Judge Marc-André Blanchard of the Superior Court of Quebec had suspended certain articles affecting English school boards in the province. The Government of Quebec appealed this element of the decision.

Daniel LeBlanc

The other opponents

The Autonomous Federation of Education, which is another plaintiff before the courts, claims that it did not use the Court Challenges Program as part of the challenge to Bill 21.

The costs incurred by the FAE before the Superior Court and the Court of Appeal of Quebec in the context of the recourse against certain provisions of the Act respecting the secularism of the State were entirely assumed by the FAE, out of its operating budget.said spokeswoman Marie-Ève ​​Rancourt.

Several lawyers who have worked for groups involved in challenging Bill 21 have done so in a voluntarily or at reduced rates, according to their spokespersons.

This is the case, for example, of lawyers who have worked for the World Sikh Organization of Canada, the Coalition inclusion Québec, the National Council of Canadian Muslims and the Civil Liberties Association.

Spokespersons for the Public Service Alliance of Canada and Amnesty International (Francophone Canada) also stated that they had not received funding from the Court Challenges Program.

Amnesty International […] never accept government fundingsays Camille Ducroquet of Amnesty International.

In defense of Bill 21

The Government of Quebec has a team of six lawyers who defend Bill 21 in court. In addition, other interveners before the courts have offered their support for the law on secularism, including the Mouvement laïque québécois, Pour les droits des femmes du Québec and Atheist Freethinkers.

Quebec called on the federal government not to meddle in challenging the law and denounced municipalities outside Quebec that offered financial support to groups fighting Bill 21. Cities like Brampton and London, in Ontario, as well as Winnipeg have announced their intention to fund the Bill 21 challenge in recent months.

When people are in authority, they cannot wear religious symbols. This is the choice we made in Quebec, in a very democratic waysaid Prime Minister François Legault after the reassignment of Ms. Anvari a few months ago.

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