Challenging Quebec’s Secularism Bill despite its use of s.33

by Jeffrey Wang

On June 16^th, 2019, Quebec passed An Act respecting the laicity of the State (Bill 21). This bill was controversial for banning the wearing of religious symbols, such as hijabs, niqabs, turbans and kippahs, for some public employees, including some teachers and public servants with state-sanctioned power to exercise coercive authority, such as police and prosecutors. It also contains the notwithstanding clause. One day after its adoption, the CCLA and National Council of Canadian Muslims (NCCM) filed an application to stay the application of Bill 21. The claimants present five fascinating arguments on the unconstitutionality of Bill 21 despite its override on Charter rights.

Firstly, the applicants claim that Bill 21 is ultra vires. According to Saumur, Henry Birks, and Big M Drug Mart, the regulation of religious observance for a moral purpose is the sole jurisdiction of Parliament. As stated in its preamble, the purpose of Bill 21 is to affirm the laicity of the State. In addition, s.6 and s.8 of Bill 21 can be considered criminal legislation, both with prohibitions and sanctions.

Secondly, the applicants argue that Bill 21 is impermissibly vague as to violate the rule of law. Particularly, Bill 21 defines religious symbol as something that is worn for a religious purpose or something that can be reasonably considered religious. Both definitions are vague. Firstly, people can wear the same item for different reasons – wedding bands, for example, have religious significance to some but not others. Dressing modestly can have religious significance to Muslim women and wearing hats can have religious significance to Jewish men. Moreover, since there are so many religions within Canada, it is impossible to identify all religious symbols. Thus, it will depend on the knowledge of individual people to identify symbols covered by Bill 21. In addition, enforcement is also left to individual organizations. This will create a chaotic and arbitrary environment in which each organization will allow and disallow different items, with different consequences. The rule of law mandates that people know the prohibitions and penalties of a law in advance, which Bill 21 clearly violates.

Thirdly, the applicants argue that Bill 21 modified the architecture of the Canadian constitution by changing the inclusive nature of public institutions. In the Secession Reference, the SCC recognized respect for minority rights as an organizing constitutional principle. Thus, unilaterally altering this principle is impermissible. The applicants argue that interference with certain rights may violate the basic constitutional architecture even without the Charter. For example, pre-1982, if a government had barred religious minorities from voting, this would have unconstitutionally altered Canadian democracy. Similarly, respect for minority rights within Canada’s democracy means that all citizens can participate in public institutions, regardless of the notwithstanding clause. Bill 21 violates this principle.

Fourthly, the applicants argue that Bill 21 affects judicial independence. S.3 of Bill 21 applies to judicial institutions, yet s.5 exempts Superior Court judges and Court of Appeal judges from complying with laicity. With respect to the judges that Bill 21 does not exempt, this infringes the requirements of judicial independence by imposing a requirement that subjects them to discipline. Under s.100 of the BNA Act, the state cannot impose a condition that impacts a judge’s security of tenure. The applicants further argue that many other actors within the judicial institution, such as clerks, justices of the peace, sheriffs, etc., must still comply with the act. Since these actors play such as important role within the legal system, they are also subject to the guaranteed administrative independence of the courts.

Fifth, starting at paragraph 156, the applicants argue that the application of Bill 21 to elected officials violates s.3 of the Charter. S.3 of the Charter includes the right to qualify for membership in the House of Commons or a provincial legislature. By applying s.8 of Bill 21 to elected officials, it excludes individuals who cover their face from this membership. The applicants argue that this is not justified under s.1 since state laicity is not a pressing objective and a total ban is not a minimal impairment of rights.

The decision of Justice Michel Yergeau was released on July 18, 2019, denying the stay. Justice Yergeau did not focus on the constitutional aspects of the case, but rather deferred to interlocutory injunction procedures. Referencing past case law, he notes that “constitutional disputes are not…amenable to the expeditious and informal procedure of the interlocutory injunction”[1] and that “only a trial judge will be able to [decide on the merits of the constitutional arguments].”[2] Yergeau J’s decision is currently being appealed.

Regardless of the outcome, the claimant’s arguments show that although the Charter thoroughly protects our rights, our constitutional culture of rights protection has evolved beyond the Charter’s parameters. Even without the Charter, citizens can turn to federalism and the unwritten constitution to continue to seek protection from majoritarian rule. The results of the stay may have direct consequences for future uses of s.33, which may no longer be seen as the legal “get-out-of-jail-free” card for the legislature.

Read the CCLA’s factum here.

[1] Hak c. Procureure générale du Québec, 2019 QCCS 2989, para 58

[2] Ibid, para 146

Jeffrey Wang is a 2L JD Candidate at the Faculty of Law.

By Patrick Enright

Indigenous Religion and the Court: A Lost Opportunity to Revise Religious Freedom Under the Charter

Earlier this month, the Supreme Court of Canada delivered its much awaited freedom of religion decision in the case of Ktunaxa Nation Council v British Columbia. Put simply, we could have waited longer. The decision marks a lost opportunity for the Court to have revised its freedom of religion jurisprudence, and is an extraordinarily dismissive analysis for what stands as the first indigenous religion brought under the Charter.

The Ktunaxa Nation Council, the appellants in the case, challenged the BC government’s approval of a ski resort on what is believed to be their sacred territory called “Qat’muk.” It was alleged that, should any construction go forward on the land, the Ktunaxa’s religious rituals would be deprived of any spiritual significance, as the “Great Grizzly Spirit,” who infuses their traditions with meaning, would permanently flee the territory. The case therefore raised the novel issue of whether s 2(a) of the Charter covers so-called “sacred sites,” and if there is any role for government in preserving the spiritual traditions of religious practitioners.

The Court, however, side-stepped all of the difficult questions of the case to simply (and tersely) assert that s 2(a) does not protect the “object” of religious beliefs. As such, it does not protect the (believed) existence of Grizzly Bear Spirt. Full Stop.

On the fascinating question of whether religious practices are intimately connected to religious beliefs themselves? Nothing.

On the issue of whether the recent origin of a religious claim can affect the proportionality analysis on judicial review? Nothing.

On the matter of whether preserving a religious community is more pressing than an individual’s religious belief? Nothing.

On whether the building of a ski resort is a sufficiently pressing objective to override a constitutional right? Nothing.

Instead we were subjected to a mere four paragraphs of analysis, with the Court merely affirming that s 2(a) only covers “beliefs” and the “manifestation” of beliefs, rather than the beliefs themselves.

But this is a senseless distinction. For the Ktunaxa, the manifestation of their beliefs requires that Qat’muk remain undisturbed. There would simply be no point in practicing their faith if the spirit that animates these practices no longer is present. By way of analogy, imagine attending a Christian Mass with the knowledge that Yahweh is no longer listening, or that God has taken a sick day to watch football. There would, alas, be no point in attending such an empty ritual.

Similarly, for the Ktunaxa, their god has been effectively killed by the State’s action in this case; or, as one twitter user suggested, “Nietzsche would have been proud of this decision.”

By this, I do not mean to say that the Ktunaxa should have come out victorious on their appeal – indeed, I think the case was deeply problematic on the facts. But failing to at least find an infringement is to fail to grapple seriously with the intimate connection that indigenous peoples and indigenous religion has with land and land claims.

Only the concurring opinion seems to have understood this. Justice Moldaver’s concurring opinion – in contrast to the majority – is a deeply satisfying, cogent analysis that takes seriously the novelty and gravity of the Ktunaxa’s religious claims. Justice Moldaver’s opinion makes the rather obvious point that manifesting the Ktunaxa’s religious beliefs required that Qat’muk go undisturbed; that indigenous religion requires the preservation of sacred sites; that not all religious beliefs can be framed in terms of protestant religious practices; that the impact on the Ktunaxa’s beliefs is severe; and, ultimately, that the state’s objective in fostering a prosperous tourism market in the province is sufficiently important to uphold the Minister’s proposal.

This analysis is thoughtful. It is sound. And it is just.

As for the majority, the Court could have saved itself 115 unnecessary paragraphs, and hundreds of wasted sentences, by simply stamping the following two words onto their jurisprudential writ:

“Appeal Dismissed.”

Patrick Enright is a 3L JD Candidate at the University of Toronto and a former Asper Centre Clinic student.

Ktunaxa case summary and further information available on the Supreme Court of Canada’s website here. For further reading on this case, please see University of Toronto Faculty of Law Professor Anna Su’s commentary: A Tale of Two Burdens and Patrick Enright’s previous summary of the Ktunaxa case in our 2017 Asper Centre Outlook Newsletter at page 12.