Quebec historian files complaint against chief justice hearing Bill 21 challenge

Women wearing hijabs leave the Quebec Court of Appeal in Montreal, Tuesday, Nov. 26, 2019, where members of the National Council of Muslims and the Canadian Civil Liberties Association (CCLA) challenged Quebec's Bill 21. Graham Hughes/The Canadian Press

Quebec’s chief justice declared herself a feminist in court last week and then suggested opposition to the province’s secularism law resulted from “visual allergies” to seeing women in a hijab.

Now Nicole Duval Hesler is facing accusations of bias as well as calls to withdraw from hearing a legal challenge to Bill 21. The Canadian Judicial Council said Monday it has received correspondence from about 30 people expressing concern that she is presiding over the appeal.

The chief justice’s actions have also drawn divided reactions from academics, with some defending her and others saying she went too far.

History teacher Frédéric Bastien of Montreal’s Dawson College announced Sunday he had filed an official complaint with the judicial council and called on Duval Hesler to withdraw from the case. Johanna Laporte, spokeswoman for the council, said in an email another 30 people followed suit after hearing of Bastien’s complaint.

Story continues below advertisement

Bastien, a Bill 21 supporter who has stated he is considering a run for the leadership of the Parti Québécois, said Monday judges should keep their personal opinions to themselves when hearing cases.

“It’s not acceptable for a judge to say ‘I’m a feminist,’ or ‘I’m a masculinist,’ or a socialist, or a communist,” Bastien said in an interview. “Whatever ‘ist’ or ‘ism’ you’re talking about, you should keep to yourself about your personal views about the case.”

READ MORE: Quebec’s Bill 21 leads to ‘irreparable harm,’ civil liberties groups tell Court of Appeal

Bill 21 prohibits some public sector workers, including teachers and police officers, from wearing religious symbols at work.

Duval Hesler is one of three judges hearing the appeal brought by a national Muslim organization, a civil liberties group and a university student who wears the hijab, who are seeking to have the central components of the law suspended while their full legal challenge is heard.

During appeal hearings last week, Duval Hesler told Eric Cantin, a lawyer representing the provincial government, “as a feminist, I have a hard time following your argument,” during part of his presentation.

A few moments later, Duval Hesler asked Cantin about weighing the harm done to Quebec society if the law is suspended against the harm caused to female teachers if the law is maintained.

Story continues below advertisement

“What is the balance of convenience?” she asked. “The visual allergies of certain people or the fact that teachers lose the right to enter into the profession of their choice?”

READ MORE: Quebec premier tells Manitoba to spend money on French services, Winnipeg Jets — not Bill 21 ads

Most troubling for Bastien, he said, is not what she said last week but that Duval Hesler is scheduled to give a speech Dec. 10 to a law society that has been critical of Bill 21.

In a brief submitted to a legislature committee last April, the Lord Reading Law Society, which promotes the interests of Quebec’s Jewish lawyers, said the law “has no reason to exist and, in fact, will create and worsen divisions in Quebec rather than solve any problem, the existence of which problem has yet to be proved.”

Bastien said Duval Hesler’s comments during the hearings and her upcoming speech “makes me believe that she might well be a partisan judge, that she has an agenda.”

Robert Leckey, dean of McGill University’s law faculty — himself a past speaker at a Lord Reading Law Society event — said “it’s completely normal” for judges to speak at events hosted by groups who intervene in litigation or express views on cases.”

“Accepting someone’s invitation to speak doesn’t mean you’re endorsing them and their views,” Leckey said in an interview.

Story continues below advertisement

He added that the Canadian judicial system seeks out diverse judges and being a feminist isn’t a partisan position. “The idea that it is problematic or it’s partial for a judge to declare herself a feminist … that they shouldn’t hear a case is a deeply troubling notion,” Leckey said.

READ MORE: Quebec premier tells Manitoba to spend money on French services, Winnipeg Jets — not Bill 21 ads

Moreover, Leckey said it’s common for judges to use colourful and strong language to test arguments during hearings, adding they are generally given a pretty wide berth to do so.

Université Laval law professor Patrick Taillon said the “accumulation” of improper behaviour from the chief justice is what is at issue.

It would be inappropriate for Duval Hesler to speak at events hosted by Quebec nationalists or other groups that advocate for secularism, he said. Judges, he continued, should abstain from giving talks at events hosted by partisan actors.

“She is now cornered,” Taillon said. If she goes to the dinner she’ll be greeted by journalists and her appearance would be politicized, he said. And if she decides to cancel her appearance, then she would be conceding her past actions were less than ideal, he added.

READ MORE: Protesters continue rallying against Bill 21 across Quebec

Additionally, Duval Hesler’s comments about “visual allergies” suggests a contempt for one of the positions, he said. There is a difference, Taillon added, between asking questions and “leading people to believe you adhere to an ideology.”

Story continues below advertisement

Bastien said if Duval Hesler refuses to withdraw, the province’s attorney general should step in and ask her to.

Premier François Legault said Monday the courts are independent and it isn’t up to him to discuss the case. “You have to understand I am in a very delicate position to comment on the comments of the chief justice,” he told reporters in Toronto, adding that he is confident the law is on solid legal footing.

Click to play video: 'Fate of controversial secularism law in the hands of Quebec’s top court' Fate of controversial secularism law in the hands of Quebec’s top court
Fate of controversial secularism law in the hands of Quebec’s top court – Nov 26, 2019

— With files from Global News’ Raquel Fletcher 

Sponsored content