Aug 21, 2019

Quebec court refuses to stay operation of law banning face covering and religious symbols in public services pending constitutional challenge

Hak c. Procureure générale du Québec, 2019 QCCS 2989 (CanLII)

August 21, 2019

A Quebec Superior Court judge declined to stay the operation of a controversial law banning public sector employees in Quebec from wearing religious symbols pending a constitutional challenge. The law also banned public servants from wearing face coverings in the delivery of public services, and provided that those receiving such services must also uncover their faces if asked to do so. In the legislation, Quebec's National Assembly invoked the "override" provision in the Canadian Charter of Rights and Freedoms, so that the law was exempt from challenge on the basis that it infringed the right to freedom of religion or discriminated against religious minorities. While the judge nevertheless accepted that the constitutional challenge, which argued that the law fell outside provincial jurisdiction and violated fundamental principles underpinning the constitution, raised serious issues to be tried, he concluded that the applicants had not demonstrated that allowing the law to come into force would cause irreparable harm. Further, this was not a case in which it was appropriate to suspend the operation of a validly enacted law in the absence of full arguments about its constitutionality. [Editors' Note: The applicants have indicated that they will appeal the Superior Court's refusal to grant a stay.]

The Facts:

When the Quebec National Assembly passed legislation imposing secular dress requirements on public servants and those receiving public services, a group of applicants brought a constitutional challenge to the legislation and sought to suspend its effect pending final determination of their claim.

As reported in Lancaster's Labour Law News, June 14, 2018, eAlert No. 431, on October 18, 2017, the Quebec National Assembly passed the Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (the "2017 Act"). The most controversial provisions of the 2017 Act, introduced under the Liberal government of Philippe Couillard, related to access to public services for, or provision of public services by, people whose faces are covered, including Muslim women who wear a niqab or burqa. Section 10 of the 2017 Act provided that "[p]ersonnel members of a body must exercise their functions with their face uncovered," and that "persons who request a service from a personnel member … must have their face uncovered when the service is provided." Section 11, which came into force on July 1, 2018, allowed individuals to request accommodation in respect of the uncovered face requirement on religious grounds in accordance with Quebec's Charter of Human Rights and Freedoms (the Quebec Charter), and s.12 required the Quebec Minister of Justice to establish guidelines for dealing with religious accommodation requests.

Section 3 of the Quebec Charter and s.2(a) of the Canadian Charter of Rights and Freedoms (the Canadian Charter) guarantee the right to freedom of conscience and religion. Discrimination on the ground of religion is prohibited in s.10 of the Quebec Charter and s.15 of the Canadian Charter.

Shortly after s.10 of the 2017 Act came into force, Marie-Michelle Lacoste, a Muslim woman living in Montreal who wore a niqab, together with the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA), brought an application asserting that s.10 violated the Canadian and Quebec Charters by preventing Muslim women who covered their faces from seeking public employment and accessing public services. In a decision addressing the suspension of the legislation only, National Council of Canadian Muslims (NCCM) c. Attorney General of Quebec, 2017 QCCS 5459 (CanLII), Justice Babak Barin of the Quebec Superior Court stayed s.10 until the accommodation provisions in s.11 came into force. In a further decision dated June 28, 2018, 2018 QCCS 2766 (CanLII), reported in Lancaster's Public Service and Crown Agency Employment Law, November 6, 2018, eAlert No. 133, Justice Marc-André Blanchard extended the stay of the operation of s.10 pending final determination of the constitutional challenge to that provision, including any appeal. On August 10, 2018, the Couillard government announced that it would not be appealing Blanchard's judgment.

Couillard's Liberal government was defeated in the Quebec provincial election on October 1, 2018, which returned a majority for the right-leaning Coalition Avenir Québec (CAQ), led by Premier François Legault. One of the CAQ's central campaign promises was to introduce a "secularism charter" banning public employees from wearing conspicuous religious symbols while at work, invoking the "notwithstanding clause" in the Canadian Charter and similar provisions of the Quebec Charter if necessary. Under s.33 of the Canadian Charter, however, Parliament or a provincial legislature may expressly declare that an act applies notwithstanding fundamental Charter rights, including ss.2(a) and 15, thereby immunizing legislation from a constitutional challenge on the basis that it infringes those rights. Any declaration under the so-called "notwithstanding clause," or "override," expires after five years unless it is re-enacted. Section 52 of the Quebec Charter sets out a similar derogation provision.

As reported in Lancaster's Labour Law News, July 25, 2019, eAlert No. 464, the National Assembly passed Bill 21, An Act respecting the laicity of the State (the "2019 Act"), on June 16, 2019. The preamble to the 2019 Act states that "the Québec nation has … a specific history that … led it to develop a particular attachment to State laicity [i.e. secularism, or religious neutrality]" and calls for the "the paramountcy of State laicity [to] be enshrined in Québec's legal order." Section 6 prohibits the individuals in Schedule II from wearing religious symbols including clothing, symbols, jewellery, accessories or headwear, in the exercise of their functions. Schedule II sets out a lengthy list of state employees including court officials, tribunal members, government-appointed labour arbitrators, government lawyers, peace officers, public school teachers, and principals.

Section 8 of the 2019 Act states that personnel members of the bodies listed in Schedule I must exercise their functions with their faces uncovered, and that individuals who interact or communicate with those personnel members must also uncover their faces "where doing so is necessary to allow their identity to be verified or for security reason." Where a person fails to uncover his or her face, he or she may be denied access to the public service delivered by the personnel member. Bodies listed in Schedule I include government departments and agencies, bodies receiving public funding, municipalities, public transit authorities, school boards, child care centres, and health and social services institutions including hospitals and long-term care centres. It appears the term "personnel members" would encompass everyone working in the public body, including unionized and non-unionized employees, office holders and senior managers, as well the individuals listed in Schedule III, including members of the National Assembly and their staff, elected municipal officers, peace officers, physicians, dentists, and midwives.

Section 34 invokes the notwithstanding clause, declaring that the 2019 Act has effect despite the applicable provisions of the Canadian Charter. Section 33 sets out a similar declaration providing that the 2019 Act has effect despite ss.1 to 38 of the Quebec Charter. The 2019 Act also amends the Quebec Charter to recognize "State laicity" as a fundamental value in the preamble, and to oblige anyone exercising rights under the Quebec Charter to have regard to State laicity.

Bill 21 was supported by the Parti Québécois (PQ), and opposed by Québec Solidaire and the Quebec Liberal Party.

After the 2019 Act came into force on June 16, 2019, Ichrak Nourel Hak, a student at the University of Montreal and prospective teacher who wore the hijab, together with the NCCM and the CCLA, brought an application for judicial review in the Quebec Superior Court, challenging the constitutionality of the 2019 Act and seeking a stay of the operation of ss.6 and 8 pending final determination of the application. The Court promptly held a hearing to deal solely with the question of the stay.

The Arguments:

The applicants argued that a stay of ss.6 and 8 of the 2019 Act pending final determination of the judicial review application should be granted. Regarding constitutionality of the 2019 Act, the applicants accepted that the legislation was exempt from challenge under certain provisions of the Canadian and Quebec Charters because of the National Assembly's declarations under the "notwithstanding clause" and s.52 of the Quebec Charter. However, they maintained that the 2019 Act was unconstitutional because: (1) it amounted to a criminal law statute and therefore fell within federal jurisdiction under the Constitution Act, 1867; (2) it was overly vague, and therefore violated the rule of law; and (3) it fell foul of certain fundamental principles underpinning the structure of the constitution, including respect for minority rights, by altering the structure of state institutions so as to exclude minorities from participating in them. In light of these arguments, the applicants submitted, the case raised a serious question to be tried. The applicants also asserted that permitting ss.6 and 8 to remain in force would cause irreparable harm to religious minorities by preventing them from accessing public services or taking up government employment.

The provincial government opposed the application for a stay. It took the view that the application did not raise a serious question to be tried, notably because the 2019 Act, which sought to reinforce the separation of church and state, fell squarely within provincial jurisdiction. More broadly, the government maintained that unwritten constitutional principles such as the rule of law and respect for minorities could not be relied upon to challenge validly enacted legislation.

The Decision:

Quebec Superior Court judge Michel Yergeau dismissed the application for a stay of ss.6 and 8 of the 2019 Act pending the outcome of the judicial review application.

As the Supreme Court of Canada held in Manitoba (P.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), where a party seeks a stay of legislation pending a challenge to its constitutionality, it must show that there is a serious question to be tried, and that if the stay is not granted, the applicant will suffer irreparable harm. In order to grant a stay, the Court must also be satisfied that the balance of convenience favours granting a stay, and that the stay is urgently required.

Turning to consider whether there was a serious question to be tried, Yergeau noted that in considering the application for a stay, he was required to avoid impinging upon the role of the judge at the hearing into the full merits of the case. He emphasized that his decision in no way attempted to address the substantive arguments raised by the applicants in support of their constitutional challenge.

Yergeau observed that in granting the stay of the 2017 Act, Justice Blanchard had remarked that it was "obvious" that the legislation amounted to a prima facie violation of the guarantee of freedom of religion in s.2(a) of the Canadian Charter. Yergeau commented that he was unable to arrive at a similar conclusion in relation to the applicants' "more precarious" argument that the 2019 Act engaged the federal criminal law power, and therefore fell outside provincial jurisdiction. Nevertheless, he accepted that there was a serious question to be tried in relation to this argument.

Although it was not necessary to do so, Yergeau embarked upon a brief analysis of the other arguments raised in the application. He accepted that the argument that the 2019 Act conferred wide discretionary powers on public officials as to whether to require an individual to remove a face covering, and was therefore contrary to the rule of law, was "well-articulated in law." However, he cautioned that "seeking the invalidation of a law duly adopted by a legislature or Parliament in the name of a constitutional principle is always an audacious gamble." Further, he noted that it would be difficult to evaluate whether the 2019 Act was overly vague in the abstract setting of a bare constitutional challenge, rather than in a case in which that law was applied to a specific set of facts.

The applicants' argument that the 2019 Act undermined the structure of the constitution by depriving religious minorities of access to state institutions and services was, in Yergeau's view, even weaker than the first two arguments. While he conceded that this argument was not "destined to fail," he suggested that it amounted to an attempt to raise Charter arguments relating to discrimination and religious freedom, when recourse to those rights had been blocked by the invocation of the "notwithstanding clause." Although, viewed in the round, the application raised a serious question to be tried, the constitutional structure argument did not satisfy this standard in its own right.

As for the claim of irreparable harm, Yergeau observed that in order to meet this requirement, the applicant must demonstrate that in the absence of a stay, the impugned legislation would inflict harm that could not be compensated through monetary damages in the event that the constitutional challenge was successful. In support of the stay application, Hak and others gave evidence that the 2019 Act had damaged their career prospects and had fuelled anti-Islamic sentiments among members of the public. Concluding that the applicants had failed to establish irreparable harm, Yergeau dismissed these arguments as speculative, particularly given that the "notwithstanding clause" immunized the 2019 Act from challenge on the basis that it discriminated against religious minorities:

Essentially, [the applicants' evidence] pleads discrimination on the basis of religious practices to which [the witnesses] freely chose to adhere. The hostile looks that certain members of civil society gave to them and the hurtful words of which two of the [witnesses] said they had been victims are not the result of the adoption of the Act, taking account of the short time between [its passage] and the issuance of the application, but rather arise from deplorable trends and incivility that the Act also seeks to curb. If certain individuals in society today feel free to proclaim their prejudices rather than to restrain them, this is not the result of the [2019 Act].

If promotions at work are one day refused on the grounds of s. 6 of the Act, or disciplinary measures are imposed for breach of sections 6 or 8, or applications to public service positions are refused, it may be possible to assess the effect of the Act in the long term…. On the other hand, one cannot conclude that there is irreparable harm on the basis of hypotheses that will only be substantiated through time and further litigation. Once the guarantees of the Charter have been excluded, the Court cannot be expected to suspend aspects of a validly adopted law on the basis of what is still merely hypothetical. [translated by Lancaster House]

Nor did the balance of convenience favour the grant of a stay. Yergeau regarded himself as bound by the principle, enunciated in Metropolitan Stores, that a court should hesitate to invalidate a law validly enacted by an elected legislature through an interim stay. Rather, under the so-called "presumption of constitutional validity" it will normally be appropriate to invalidate a statute only after a full merits hearing. In this case, Yergeau opined, it would be inappropriate for the Court to second-guess the wisdom of the 2019 Act by granting a stay pending a hearing:

[T]he National Assembly, by a majority of votes, concluded that including a prohibition on wearing religious symbols in the code of conduct for persons occupying the roles listed in Schedule II of the Act serves the common good…. In the same way, the legislature introduced in the code of conduct for the near-totality of State servants the obligation to serve with their faces uncovered. There is once again a presumption that it did so in the public interest.

The applicants oppose this not on the grounds of the rights and guarantees set out in the Charters, because this route is precluded by the legislature's recourse to the derogation clauses, but through constitutional law arguments that the Court, after a preliminary analysis, regarded as serious, but that for the instant remain hypothetical and [far] from obvious. They are complex arguments whose outcome remains uncertain and that can be assessed only at the end of a hearing.

What is really demanded of the Court at this stage is to conclude that, at first blush, it is in the public interest to suspend two of the key sections of the [2019 Act]. To pretend, as do the applicants, that the stay would be consequence-free because the Act does not address any demonstrated social need amounts to asking the Court to interfere in the wisdom of the Act, which is does not have the right to do. [translated by Lancaster House]

In the result, Yergeau denied the stay application.

Comment:

Following the decision in the case under review, the applicants announced that they would be appealing Yergeau's judgment denying the stay to the Quebec Court of Appeal. Amrit Kaur, vice-president of the world Sikh organization, and another prospective teacher whose employment prospects were threatened by the law, criticized Yergeau's conclusion that implementing the 2019 Act would not lead to irreparable harm: "To say that there are no immediate effects is a complete lie, because there are people like myself who have to choose between their faith and their careers, and they cannot put their faith aside…." NCCM executive director Mustafa Farooq was similarly adamant about the need for immediate relief: "This bill must be stopped now. That is because Bill 21 at its core is about separating us from each other."

Yergeau stressed that his decision related purely to the stay application and was not intended to prejudice the assessment of the arguments on the merits put forward by the applicants. Nevertheless, it is clear from the overall tone of the judgment that Yergeau viewed the application as facing a high hurdle, given that the 2019 Act is immune from challenge on the basis that it violates Charter rights.

In the era before the constitutional entrenchment of the Canadian Charter in 1982, those seeking to challenge laws that ran afoul of civil liberties were forced to base their legal challenges on the federal-provincial division of powers in the constitution. In the seminal case of Saumur v. City of Quebec, 1953 CanLII 3 (SCC), a group of Jehovah's Witnesses challenged a Quebec City by-law, which banned the distribution of literature on the city's streets without police permission, on the basis that it was enacted for the purpose of restraining them from proselytizing. Although the case was decided in the Jehovah's Witnesses' favour on other grounds, four of the nine judges on the Supreme Court of Canada held that the regulation of religious freedom fell within federal jurisdiction. In Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, 1955 CanLII 69 (SCC), the Supreme Court unanimously held that legislation requiring shops to close on religious holidays was an exercise of the criminal law power and was therefore outside provincial jurisdiction. These decades-old cases may take on enhanced relevance in light of the argument of the applicants in this case that Bill 21, insofar as it prohibits religious symbols and face-covering, amounts to a criminal statute and exceeds the National Assembly's jurisdiction.

The "notwithstanding clause," which permits Parliament and the provincial legislatures to override fundamental rights and liberties guaranteed in the Charter, was routinely invoked by the Quebec National Assembly between 1982 and 1985 as an act of protest against the passage of the Constitution Act, 1982, without the province's consent. However, the controversial clause has rarely been invoked since the mid-1980s. It was relied upon to immunize the French-only signage provisions in the Quebec Charter of the French Language, and to define marriage as being between a man and a woman in the Alberta Marriage Act between 2000 and 2014, in the face of a series of court decisions holding that laws prohibiting same-sex marriages violated the guarantee of equality in the Canadian Charter. More recently, the right-of-centre Saskatchewan Party government of Brad Wall invoked the "notwithstanding clause" in the 2018 School Choice Protection Act, to override a court ruling curtailing the right of non-Catholic children to attend state-funded Catholic schools. In 2018, Ontario's newly-elected PC government, led by Premier Doug Ford, introduced legislation reducing the size of Toronto's City Council and incorporating the Charter "override" after Justice Edward Belobaba found that similar legislation violated the Charter right to freedom of expression. In the event, the Ford government withdrew the controversial bill after Belobaba's ruling was reversed on appeal. However, these events, together with Quebec's 2019 Act, appear to signal a willingness on the part of populist governments to disregard fundamental Charter rights.