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Canada: Quebec Court Ruling Prolongs Stay of Uncovered-Face Provision

(July 27, 2018) On June 28, 2018, the Superior Court of Quebec ruled to stay the operation of section 10 of 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 stay allows veiled Muslim women in the Canadian province of Quebec to remain veiled in many public institutions “including daycares, universities, social services providers, hospitals, police services, museums, public transit authorities and the SAQ to name just a few” without seeking prior authorization. (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, R.S.Q., c. R-26.2.01 (Religious Neutrality Act), Publications Québec website; National Council of Canadian Muslims (NCCM) v. Attorney General of Quebec, 2018 QCCS 2766, para. 11, CanLII website.)

The stay will remain in effect until a decision is made on the merits of an application to determine whether sections 10 and 15 of the Act are constitutional under section 2(a) of the Canadian Charter (freedom of conscience and religion) and section 3 of the Québec Charter (freedom of religion). (Constitution Act of 1982, Annex B of Canada Act 1982, c. 11 (U.K.); Charter of Human Rights and Freedoms, R.S.Q., c. C-12; National Council of Canadian Muslims (NCCM) v. Attorney General of Quebec, 2018 QCCS 2766.)

Background

On October 18, 2017, the National Assembly of Quebec adopted the Religious Neutrality Act with the explicit aim to “[affirm] the religious neutrality of the State” and “recognize the importance of having one’s face uncovered when public services are provided and received so as to ensure quality communication between persons and allow their identity to be verified, and for security purposes.” (Religious Neutrality Act § 1.)

Section 10 of the Act further defines the second and most contentious objective of the Act, establishing that “[p]ersonnel members of a body must exercise their functions with their face uncovered. Similarly, persons who request a service from a personnel member of a body referred to in this chapter must have their face uncovered when the service is provided.” (Id. § 10.) Section 15 of the law imposes similar obligations on contractors of public institutions. (Id. § 15.) The Act further establishes guidelines “under which accommodations on religious grounds may be granted,” postponing the guidelines’ entry into force until July 1, 2018. It additionally provides that the Minister of Justice must likewise establish guidelines “in order to support bodies in their application of such requests.” However, no date was specified by the Act concerning the publication of the Minister’s guidelines. (Id. Explanatory Notes; see also id. §§ 11 & 12.)

When section 10 of the Act entered into force on November 15, 2017 (date of publication), the accommodation guidelines provided by the Act were not yet in force and the Minister’s guidelines were not published, thus contributing to general confusion about the application of the Act. Only 16 days later, on December 1, 2017, the Superior Court granted in part an interim stay of the operation of section 10 until July 1, 2018, the date of the accommodation guidelines’ entry into force. (National Council of Canadian Muslims (NCCM) v. Attorney General of Quebec, 2017 QCCS 5459, CanLII website.)

The Minister’s guidelines were published on May 9, 2018. (Ministère de la Justice, Lignes Directrices portant sur le traitement d’une demande d’accommodement pour un motif religieux [Ministry of Justice, Guidelines to Process a Religious Accommodation Request], May 9, 2018, Ministry of Justice website.)

Prolongation of Recent Stay: the Court’s Conclusions

The issuance of a stay of the application of a law pending review of its validity in Canada rests on three distinct criteria: (a) there must be a serious issue to be tried, (b) irreparable harm will occur if the stay is not granted, and (c) the balance of convenience favors granting the stay. (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, CanLII website.)

 Seriousness of the Issue and Irreparable Harm

Pointing to the urgency of the situation in light of the upcoming expiration of the interim stay and noting that both parties had agreed on the seriousness of the issue, the Superior Court concluded that “irreparable harm results from the bare violation of constitutionally protected fundamental rights” and “[t]he chilling effect of section 10 on Muslim women is also demonstrated by the affidavits filed.” (National Council of Canadian Muslims (NCCM) v. Attorney General of Quebec, 2018 QCCS 2766, paras. 25–30.)

Exceptional Situation

Mindful that the duty of a Court in the interlocutory stage is not “to decide the merits of the case” but rather to decide “whether or not the law carries a greater social benefit than it does harm to the Muslim women who decide to cover their faces in public for religious reasons,” the Court nonetheless concluded that the intent of the legislator and the concrete effect of the law “are directed at a very identifiable and extremely minimal number of Muslim women” (id. para. 45), which “constitutes an exceptional situation, especially in the context of assessing the balance of convenience element in the course of a stay application” (id. para. 47).

Confusion Despite Ministerial Guidelines

The Court also noted that notwithstanding the recent publication of the Minister’s guidelines, confusion persists as to both the general application of section 10 and the granting of accommodations on religious grounds. For instance, upon the hypothetical case of a veiled woman wishing to embark in a public transportation bus, the Attorney General of Quebec pleaded that “[i]t was the individual drivers themselves who would decide whether an accommodation was required or not.” (Id. para. 52.) Meanwhile, in a press conference, the Minister of Justice (also Attorney General of Quebec) was of the opinion that “if we are to take the same fictional example, that it would not be the individual bus driver who would be in charge of granting the accommodation.” (Id. para. 56.)

Social Status Quo

Evaluating the potential harm that a prolongation of a suspension of section 10 would have on the society as a whole, the Court emphasized that no public concerns regarding communication, identification, or security issues have been reported:

[61] Also, the uncontradicted evidence shows that women who wear the niqab already accept to remove it temporarily when required to identify themselves, or for security-related reasons and that no issues exist in regard to communication when they are seeking public services. It appears that, in reality, no pressing security, identification-related, or communication needs have been identified. (Id. para. 62.)

Balance of Convenience

Believing that the exceptional circumstances of the case called for going beyond the presumption of validity of intent and effect of the law to properly assess the balance of convenience of prolonging the stay, the Court stated as follows:

[68] In a free and democratic society, citizens are not required to obtain, in advance, permission from any state representative to engage in unregulated social behaviour. As the law now stands, taking the bus or the subway, picking up a child at a daycare, attending an appointment at a CLSC or a hospital, visiting a museum, going to an SAQ outlet, are examples of behaviours that would require approval, in advance, by the accommodation officer of that public body, before such everyday life activities could be accomplished. (Id. para. 68.)

Hence, the Court ordered the prolongation of the stay, concluding that “[i]f the existing stay is not extended beyond July 1st, the fundamental rights and freedoms of women who cover their faces for religious reasons will be seriously infringed.” (Id. para. 75.)

The Chief of Staff of the Attorney General of Quebec, Nathalie Roberge, said that the Attorney General would “analyze” the decision when asked by the newspaper Le Devoir whether or not an appeal would be lodged. (Marco Bélai-Cirilo, Nouvel Échec du Québec devant la Cour [New Failure of Quebec Before the Court], Le Devoir (June 29, 2018).)

However, it bears noting that the stay will be “executory notwithstanding appeal” to secure the protection of veiled Muslim women’s rights. (Canadian Muslims (NCCM) v. Attorney General of Quebec, 2018 QCCS 2766, para. 81.)

Prepared by Anthony Breton, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.