Feb 11, 2020

Appeal court refuses to stay operation of Quebec Bill 21 banning face coverings and religious symbols in public services

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

February 11, 2020

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.

The 2017 Act

As reported in Lancaster's Labour Law News, June 14, 2018, eAlert No. 431, on October 18, 2017, the Quebec National Assembly passed an 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 heads or 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 a request for the temporary suspension of the legislation, 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 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 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 constitutional override provisions in the Canadian and Quebec Charters if necessary. Under s.33 of the Canadian Charter, Parliament or a provincial legislature may expressly declare that an act applies notwithstanding the rights in ss.2 and 7 to 15 of the Charter, thereby immunizing legislation from a constitutional challenge on the basis that it infringes those rights. Any declaration under the so-called "notwithstanding clause" expires after five years unless it is re-enacted. Section 52 of the Quebec Charter sets out a similar derogation provision.

The 2019 Act

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 paramountcy of State laicity [to] be enshrined in Québec's legal order." Section 6 prohibits the individuals listed 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. Under s.31, those who were employed on March 27, 2019, the day before Bill 21 was introduced, are exempt from s.6 for as long as they remain in the same positions that they held on that date.

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 reasons." Where individuals fail to uncover their faces, they 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.

Case History:

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 a hijab, together with the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA), brought an application for judicial review in the Quebec Superior Court, challenging the constitutionality of the 2019 Act, which they argued was invalid because (1) the pith and substance of the legislation was criminal law, which falls within exclusive federal jurisdiction; (2) certain parts of the 2019 Act were vague and violated the constitutional principle of the rule of law; and (3) in denying certain individuals the right to participate in aspects of public life, the 2019 Act was incompatible with the structure of the Canadian constitution. The applicants also sought 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.

In a decision dated July 18, 2019, 2019 QCCS 2989 (CanLII), reported in Lancaster's Headlines, August 21, 2019, Quebec Superior Court judge Michel Yergeau declined to grant the stay. He applied the test for suspending legislation pending a constitutional challenge, as set out by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC). The party seeking the stay 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. Yergeau accepted that there was a serious question to be tried in relation to the applicants' argument that the 2019 Act engaged the federal criminal law power, and was therefore outside the provincial government's jurisdiction, although he described that argument as "precarious." However, in his view, the applicants had not established that they would suffer irreparable harm in the absence of a stay, notably because their evidence that the 2019 Act had damaged their career prospects and had fuelled anti-Islamic sentiments among members of the public was speculative. Under the so-called "presumption of constitutional validity," Yergeau stated, it will normally be appropriate to invalidate a statute only after a full merits hearing, and in this case it would be inappropriate for the Court to second-guess the wisdom of the 2019 Act by granting an interlocutory stay (i.e. a stay pending determination of the merits).

On August 1, 2019, 2019 QCCA 1404 (CanLII), the Quebec Court of Appeal granted permission to the applicants to appeal Yergeau's judgment. Meanwhile, a number of women wearing the niqab who had applied for teaching positions were informed by school boards that they would not be offered employment unless they agreed to refrain from wearing religious symbols at work, as required under the 2019 Act.

During a case management conference, the Court of Appeal invited the parties to consider the effect on the appeal of s.28 of the Canadian Charter, which reads, "[n]otwithstanding anything in this Charter, the rights and freedoms in it are guaranteed equally to male and female persons."

The Arguments:

The applicants argued that the judge below had erred in refusing to stay the operation of the 2019 Act. They sought to rely on an additional ground to support their claim that the 2019 Act was unconstitutional, namely that it violates s.28 of the Charter, which provides that Charter rights are guaranteed equally to men and women. Because only Muslim women wear the niqab, and because most teachers are women, they submitted, the 2019 Act disproportionately affected women and therefore violated s.28, the operation of which, they maintained, is not affected where the notwithstanding clause is invoked. Regarding irreparable harm, the applicants contended that the judge below should have considered whether the harm identified by the applicants was likely to occur, rather than dismissing their arguments on the basis that no harm had arisen at that stage. In any event, in light of the experience of the women who had been denied teaching positions because they wore the niqab, they asserted, irreparable harm had been established in this case.

The provincial government responded that there were no grounds to disturb the Superior Court's decision not to grant a stay. The government conceded that there was a serious question to be tried, both on account of the federal-provincial jurisdiction issue identified by the judge below and the additional s.28 issue raised for the first time by the applicants in their appeal. However, in the government's submission, the balance of convenience ultimately favoured refusing a stay, particularly in light of the presumption that the 2019 Act was enacted in the public interest.

The Decision:

In a 2-1 majority judgment, written by Justice Dominique Bélanger with Justice Robert Mainville concurring, the Quebec Court of Appeal upheld the Superior Court's decision not to suspend the effect of the 2019 Act pending the outcome of judicial proceedings. Quebec Chief Justice Nicole Duval Hesler dissented.

Justice Bélanger noted that it was common ground that the additional issue raised by the applicants on appeal, namely the allegation that the 2019 Act disproportionately affected women and therefore breached s.28 of the Charter, raised a serious issue to be tried. As well, the conclusion of the judge below, that the applicants' argument that the pith and substance of the 2019 Act was an exercise of the criminal law power and therefore outside the provincial legislature's jurisdiction, raised a serious question to be tried, and it was not challenged on appeal. The first limb of the test in Metropolitan Stores was therefore satisfied.

Likewise, the majority of the Court of Appeal accepted that the conclusion of the judge below, i.e. that the applicants' fears that the 2019 Act would negatively affect the employment prospects of religious minorities were speculative or theoretical, had been superseded in light of the evidence that Muslim women who refused to stop wearing the niqab were being denied teaching positions. In such circumstances, the majority agreed, irreparable harm would be suffered in the absence of a stay.

However, in the majority's view, the National Assembly's decision to invoke the "notwithstanding clause" in the 2019 Act fundamentally shifted the balance of convenience in favour of refusing a stay. The override provision eliminated the applicants' ability to rely on their fundamental freedom of religion in challenging the 2019 Act. Further, it was not entirely clear that s.28 created an independent right to equality between the sexes that was immune from the effect of the "notwithstanding clause". Justice Bélanger stated:

The ban on wearing a religious symbol, even a hidden one, while working and the continued application of that ban as a condition of employment is an argument that could be raised successfully in an application for a stay by the persons referred to in section 6 of the Act, if there were no notwithstanding clause.

That said, given the use of the notwithstanding clause, we must refuse to suspend the Act, even if a person has submitted serious constitutional issues, is suffering serious and irreparable harm and has had his or her rights infringed, unless it is clear that the Act is invalid.

Even in the absence of an urgent evil to eradicate or a situation affecting a pressing public need… it is not for the courts to interfere in the legislature's choice to define the public interest as it sees fit. …

For more than 35 years, [Canadian] courts have ensured respect for the fundamental rights and individual liberties of individuals in Quebec and in Canada, including the right to equality. …

Despite this clear obligation, when faced with the use of the notwithstanding clause (which, it must be remembered, is part of our law), the courts must be deferential at this preliminary stage of the case….

In the case at bar, the notwithstanding clause dictates that, at this stage of the case, the courts must abandon to their fate women graduates who are willing to work and who, for the sole reason that they wear the veil, have been denied access to a job for which they hold all the skills. [emphasis in original]

In concurring reasons, Justice Robert Mainville emphasized that in considering whether the balance of convenience favoured granting a stay, the Court must presume that the law furthers the public good. That presumption was bolstered in this case by the use of s.33 of the Charter. Mainville opined that "given the use of the notwithstanding provision, it does not appear legally possible at this preliminary stage of the proceedings to suspend the application of the Act." He cautioned that the applicants' argument that ss.6 and 8 of the 2019 Act discriminated against women who wear the niqab or hijab and therefore violated s.28 of the Charter, and that the effect of s.33 did not extend to that provision, was "not obvious at first sight." The courts had yet to consider how ss.28 and 33 interacted with each other. Given the "nebulous and embryonic" state of the law on s.28, immediate suspension of the 2019 Act was not justified.

In the result, Justices Bélanger and Mainville dismissed the appeal and upheld the lower court's decision not to grant the stay.

In a dissent, Quebec Chief Justice Nicole Duval Hesler held that the appeal should be allowed and the stay granted, but only in respect of teachers, principals, and other educational workers and only in respect of the ban on wearing religious symbols at work under s.6 of the 2019 Act. There was no dispute that the case raised a number of serious questions to be tried, Duval Hesler ruled, and she was more optimistic than her colleagues about the strength of the applicants' argument that s.33 of the Charter does not apply to the sexual equality clause in s.28, remarking that such an interpretation would give effect to the words "[n]otwithstanding anything else in this Charter" at the beginning of that provision. In her view, the applicants had also established irreparable harm on the basis of evidence that a number of Muslim women who had been aspiring teachers were unable to pursue their career choices as a result of s.6 of the 2019 Act. Turning to the balance of convenience, Duval Hesler rejected the majority's conclusion that, because s.33 had been invoked, the civil courts must refuse to stay the 2019 Act. Although the legislation was presumed to further the public good, the interests served by giving effect to the legislation did not outweigh those of female teachers who had been demonstrably prejudiced by the operation of s.6.

In a statement released on December 18, the CCLA and the NCCM announced that they would seek leave to appeal the Court of Appeal's decision to the Supreme Court of Canada.

Comment:

The "notwithstanding clause," which permits Parliament and the provincial legislatures to override fundamental rights and liberties guaranteed in the Canadian 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.

Although s.33 has rarely been invoked since the mid-1980s, Quebec's 2019 Act and recent legislative developments elsewhere in Canada appear to signal a renewed willingness to deploy the controversial override provision. The 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 Conservative government, led by Premier Doug Ford, introduced legislation reducing the size of Toronto's City Council and incorporating the Charter's "override" provision 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. In December 2019, New Brunswick's government introduced Bill 11, An Act Respecting Proof of Immunization, which would remove the ability to rely on conscientious or religious reasons where a child who had not been immunized wished to attend a public school. Bill 11 had been introduced in a previous legislative session but was reintroduced with a new clause overriding Charter rights and freedoms after an anti-vaccination group threatened to mount a constitutional challenge to the legislation.

The invocation by the Quebec government of the "notwithstanding clause" in the 2019 Act has led the applicants in the instant case to pursue unconventional legal arguments. 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 law statute and therefore exceeds the National Assembly's jurisdiction.

Likewise, the new ground of appeal argues that the 2019 Act is unconstitutional because it infringes s.28 of the Charter, as the legislation has an adverse effect on women. The advantage in relying on s.28 is that there is, at the very least, an arguable case that the "notwithstanding clause," which refers to sections 2 and 7 to 15, does not disturb its application. However, as noted in the judgment under review, there is no caselaw on the interaction between ss.28 and 33 of the Charter.