Apr 13, 2020

The Section 28 Bone Doesn't Connect to the Section 33 Bone

Official English Translation of the Judgment of the Court, 2019 QCCA 2145 (CanLII)
On June 16, 2019, the Assemblée nationale du Québec passed the Act respecting the laicity of the State. On its face, the Act would appear to be controversial, seeking to ensure the non-religious nature of the state,
2. The laicity of the State is based on the following principles:
(1) the separation of State and religions;
(2) the religious neutrality of the State;
(3) the equality of all citizens; and
(4) freedom of conscience and freedom of religion.
The very next day though, the Act was challenged on the basis that it was discriminatory, and sought an interim stay or a declaration of invalidity,
6. The persons listed in Schedule II are prohibited from wearing religious symbols in the exercise of their functions.
A religious symbol, within the meaning of this section, is any object, including clothing, a symbol, jewellery, an adornment, an accessory or headwear, that
(1) is worn in connection with a religious conviction or belief; or
(2) is reasonably considered as referring to a religious affiliation.
...
8. Personnel members of a [government] body must exercise their functions with their face uncovered.
Similarly, persons who present themselves to receive a service from a personnel member of a body must have their face uncovered where doing so is necessary to allow their identity to be verified or for security reasons. Persons who fail to comply with that obligation may not receive the service requested, where applicable.
For the purposes of the second paragraph, persons are deemed to be presenting themselves to receive a service when they are interacting or communicating with a personnel member of a body in the exercise of the personnel member’s functions.
The effect of this law would be to practically exclude many religious minorities from the workplace, including in industries such as teaching, daycare, and law. Anticipating these concerns, the Act itself formally invokes the notwithstanding clause,
34. This Act and the amendments made by Chapter V of this Act have effect notwithstanding sections 2 and 7 to 15 of the Constitution Act, 1982 (Schedule B to the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom)
The get around this, the applicants sought their stay not by arguing a Charter violation, but on 3 constitutional grounds:
  1. The Act in its pith and substance appears to be a criminal law, which would be under subsection 91 (27) of the Constitution Act, 1867 , and fall outside the provincial powers in section 92, such as property and civil rights in the province under subsection 92 (13) ;
  2. Proper implementation of the Act by public officials, and judicial overview, would be impossible due to vagueness; and,
  3. The exclusion of persons from public institutions on the basis of personal characteristics violates the constitutional structure.
Last year, the Quebec Superior Court rejected the stay application, finding no irreparable harm. Because the new law had just been enacted, any cited harm was theoretical. The invocation of the notwithstanding clause meant any harm was not necessarily protected, and the judge noted there was no fine or penalty stated in the Act. The third constitutional argument was therefore omitted immediately. He also noted this was an Act duly passed by the legislature, and interference with the Act should only be done very carefully. The court was unable to draw a clear conclusion about the jurisdictional issues, and differentiated it from the prima facie case in National Council of Canadian Muslims (NCCM) c. Attorney General of Québec. In that case, which is still ongoing, a challenge was mounted against a previous Quebec law that prohibited face coverings, and a stay was successfully obtained. A serious question would be tried here, which is the first part of the test for a stay. In support of 2, the applicants cited Reference re Secession of Quebec, to demonstrate the effect of vagueness on the rule of law,

70 The principles of constitutionalism and the rule of law lie at the root of our system of government. The rule of law, as observed in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 142, is "a fundamental postulate of our constitutional structure". As we noted in the Patriation Reference, supra, at pp. 805-6, "[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

The court was less sympathetic to the second argument, noting that it fell far below the threshold set in paras 67-68 of British Columbia v. Imperial Tobacco Ltd.

The decision was then appealed to the Quebec Court of Appeal, which released its decision in late 2019. New evidence was adduced, and the same grounds were proposed by the applicants, with one significant modification. In reiterating the third argument on constitutional structure, the applicants claimed that the use of the notwithstanding clause cannot apply to s. 28 of the Charter, which states,

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

In other words, notwithstanding the notwithstanding clause, the protection against gender discrimination still could not be derogated out of. The applicants claimed that the Act disproportionately discriminated against women, especially with minority religious groups, and their new evidence in this respect was admitted. The Quebec Court of Appeal dismissed the appeal, in a split decision. The dissent, authored by the Chief Justice, emphasized the gender discrimination argument was particularly important,
[20] No Canadian appellate court has yet considered the interplay between this section and the notwithstanding clause, nor has the Supreme Court of Canada.
She noted that the addition of s. 28 in 1981 was done on the insistence of the Canadian Advisory Council on the Status of Women, who believed that the notwithstanding clause applying to the gender protections in s. 15 alone would violate the United Nation's International Covenant on Civil and Political Rights (see Article 4, paragraph 2). Citing Kerri Froc's thesis, The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms, she stated,
[50] In light the foregoing historical background, the interpretation of section 28 must logically give effect to the words: “Notwithstanding anything in this Charter”. This wording could lead one to believe that section 28 blocks the effect of a section 33 override when a statute restricts access to certain fundamental rights unequally between the sexes.[35]

Given these new issues and evidence, the Chief Justice concluded that women teachers in particular would be affected by this Act.

The majority, in two decisions, differed not with the irreparable harm to teachers, but with the balance of convenience. This was justified in part by a grandfather clause, allowing teachers who wore a religious symbol prior to the Act to continue to do so in the same role. Granting the stay would require for the Act to be clearly affecting gender equality, and a clear demonstration that the notwithstanding clause could not be used here.

The Supreme Court of Canada denied leave to appeal this week, but that does not mean the end to this legal challenge. While the stay may not be in place, subsequent legal proceedings may still explore these issues further. Unless, of course, another government is elected to remove these laws entirely.