Official English Translation of the Judgment of the Court

COURT OF APPEAL

CANADA
PROVINCE OF QUEBEC
REGISTRY OF MONTREAL

No.: 500-09-028470-193
(500-17-108353-197)

DATE: December 12, 2019

CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q.

DOMINIQUE BÉLANGER, J.A.
ROBERT M. MAINVILLE, J.A.

ICHRAK NOUREL HAK

NATIONAL COUNCIL OF CANADIAN MUSLIMS (NCCM) / CONSEIL NATIONAL
DES MUSULMANS CANADIENS (CNMC)
CORPORATION OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION (CCLA) /
ASSOCIATIONS CANADIENNE DES LIBERTÉS CIVILES (ACLC)
APPELLANTS – Plaintiffs
v.

ATTORNEY GENERAL OF QUEBEC

RESPONDENT – Defendant

JUDGMENT

[1] The appellants appeal an interlocutory judgment rendered on July 18, 2019 by the
Honourable Michel Yergeau of the Superior Court, District of Montreal, that dismissed
their application for a provisional stay of sections 6 and 8 of the Act respecting the laicity
of the State.

[2] The appellants also seek leave to adduce new evidence on appeal.
500-09-028470-193 PAGE: 2
As regards the application to adduce new evidence:

[3] For the reasons of Chief Justice Nicole Duval Hesler, with which Bélanger and
Mainville, JJ.A., concur, the application for leave to adduce new evidence on appeal is
granted, without legal costs.

As regards the appeal of the Superior Court judgment:

[4] For the separate reasons of Bélanger, J.A., and Mainville, J.A., the appeal is
dismissed, without legal costs.

[5] For other reasons, Chief Justice Duval Hesler would have allowed the appeal in
part and would have suspended, during the proceedings, the application of section 6 of
the Act respecting the laicity of the State to the persons referred to in paragraph 10 of
Schedule II of said Act, without legal costs.

NICOLE DUVAL HESLER, C.J.Q.

DOMINIQUE BÉLANGER, J.A.

ROBERT M. MAINVILLE, J.A.

Mtre Catherine McKenzie

Mtre Olga Redko
IMK
For the appellants

Mtre Éric Cantin

Mtre Laurence St-Pierre-Harvey
Mtre Stéphanie Lisa Roberts
BERNARD, ROY (JUSTICE-QUÉBEC)
For the respondent

Date of hearing: November 26, 2019

500-09-028470-193 PAGE: 3

MOTIFS DE LA JUGE

Introduction: Background and the judgment under appeal

[6] The appellants appeal an interlocutory judgment rendered on July 18, 2019 by the
Honourable Michel Yergeau of the Superior Court, District of Montreal, that dismissed
their application for a provisional stay of sections 6 and 8 of the Act respecting the laicity
of the State1 (the “Act”).2

[7] On June 16, 2019, Quebec’s National Assembly enacted the Act respecting the
laicity of the State. The Act received Royal Assent and came into force that same day.3

[8] The preamble to the Act states that its purpose is that “the paramountcy of State
laicity be enshrined in Québec’s legal order”. Moreover, the preamble states that a goal
of the Act is that “a stricter duty of restraint regarding religious matters shall be established
for persons exercising certain functions, resulting in their being prohibited from wearing
religious symbols in the exercise of their functions”.4

[9] Discrimination must be assessed by its negative impact on members of a group

that is protected against a prohibited ground of discrimination, not by the stated purpose
of a legislative text or by legislative intent. Since the discriminatory effect of the Act is
obvious, the legislature included the so-called “notwithstanding” clause, namely, section
34 of the Act, which expressly states that its provisions will have effect regardless of
sections 2 and 7 to 15 of the Canadian Charter. It should be noted that section 33 of the
Canadian Charter, which allows such a derogation, does not refer to section 28 of said
Charter, a matter that will be discussed below.

[10] The following are the relevant sections of the Act:

6. The persons listed in Schedule II 6. Le port d’un signe religieux est
are prohibited from wearing religious interdit dans l’exercice de leurs
symbols in the exercise of their fonctions aux personnes énumérées à
functions. l’annexe II.

[…] […]

1 CQLR, c. L-0.3 [ARLS].

2 Hak c. Procureure générale du Québec, 2019 QCCS 2989 [Judgment under appeal].
3 An Act respecting the laicity of the State, S.Q. 2019, c. 12.
4 ARLS, supra, note 1, Preamble.
500-09-028470-193 PAGE: 4

8. Personnel members of a body must 8. Un membre du personnel d’un

exercise their functions with their face organisme doit exercer ses fonctions
uncovered. à visage découvert.

Similarly, persons who present De même, une personne qui se

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.
présente pour recevoir un service par
un membre du personnel d’un
organisme doit avoir le visage
découvert lorsque cela est nécessaire
pour permettre la vérification de son
identité ou pour des motifs de
sécurité. La personne qui ne respecte
pas cette obligation ne peut recevoir
le service qu’elle demande, le cas
échéant.

For the purpose of the second Pour l’application du deuxième alinéa,

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.
une personne est réputée se
présenter pour recevoir un service
lorsqu’elle interagit ou communique
avec un membre du personnel d’un
organisme dans l’exercice de ses
fonctions.

[11] The very next day, June 17, 2019, the appellants served on the Attorney General
of Quebec an application seeking to have the Act declared invalid and seeking a
suspension of the application of sections 6 and 8 of the Act [TRANSLATION] “for the period
required by the courts to rule on the merits of the conclusions sought by the plaintiffs”.5

[12] In their application to have the Act declared invalid, the appellants alleged that the
Act is unconstitutional for three reasons: (1) the Act is in pith and substance criminal
legislation, a matter within exclusive federal jurisdiction; (2) the vagueness of certain
essential aspects of the Act violates the rule of law; and (3) the Act violates the structure
of the Constitution, because, based on personal characteristics, it denies members of
society the right to actively participate in certain public institutions. 6 These were the
grounds raised before the judge in first instance.

5 Judgment under appeal, para. 2.

6 Amended application for Judicial Review (Declaration of Invalidity) and Application for an Interim Stay,
A.M., p. 83-109.
500-09-028470-193 PAGE: 5

[13] Appellant Ichrak Nourel Hak is a bachelor of education student at the Université
de Montréal. She expects to graduate this winter. She stated that, subsequently, she
would like to teach French in an immigrant integration high school class or in an
elementary class in an English school. She stated that she wears the hijab (hereinafter
the “hijab” or the “Islamic headscarf”) in accordance with her religious beliefs.
Furthermore, she stated that the hijab forms part of her identity and that the Act is
[TRANSLATION] “forcing [her] to choose between [her] dream and the preservation of [her]
identity”.7 She submitted that the Act is obliging her to change her career. Furthermore,
she stated that she feels excluded and discriminated against, because she cannot
become a part of major public institutions due to her identity.8

[14] The other two appellants, NCCM and CCLA, stated that they have the necessary
standing to act on behalf of the public interest.9

[15] In support of their application, the appellants filed several affidavits from various
individuals in order to prove the irreparable harm that would result from a refusal to
suspend the application of sections 6 and 8 of the Act.10

[16] On July 18, 2019, the Superior Court dismissed the application for a stay.11

[17] After setting out the factual context and the proceedings, the judge reviewed the
impugned Act and summarized the operation of the notwithstanding clauses as well as
the principles governing stays.12 The judge then analyzed the application.

[18] He noted, from the outset, that [TRANSLATION] “at this stage, the plaintiffs have
abandoned the idea of making this matter a Charter debate and have, instead, made it a
constitutional debate focused on the three previously mentioned propositions: the division
of powers, the rule of law and the constitutional structure”.13

[19] It should be noted at this point that this is not the same debate that took place on
appeal. During a case management conference, the parties were invited to address the
application of section 28 of the Canadian Charter within the scope of the present appeal.
That section reads as follows:
28. Notwithstanding anything in this 28. Indépendamment des autres
Charter, the rights and freedoms in it dispositions de la présente charte, les
are guaranteed equally to male and droits et libertés qui y sont mentionnés
female persons.

7 Affidavit of Ichrak Nourel Hak, A.M., vol. 2, p. 135.

8 Id., p. 136.
9 Affidavit of Mustafa Farooq, A.M., vol. 2, p. 158; Affidavit of Noa Mendelsohn Aviv, A.M., vol. 2, p. 146.
10 A.M., vol. 2, pp. 110-258.
11 Judgment under appeal.
12 Id., paras. 1-56.
13 Id., para. 77.
500-09-028470-193 PAGE: 6

sont garantis également aux

personnes des deux sexes.
[20] No Canadian appellate court has yet considered the interplay between this section
and the notwithstanding clause, nor has the Supreme Court of Canada.

[21] Of course, the parties’ positions and arguments were significantly altered by this
development, and also because they were subsequently invited, by way of letter, to
discuss the possibility of constitutional exemptions or a partial stay. The judgment of first
instance was largely based on the existence of the notwithstanding clause which,
according to the judge, closed the door to charter arguments. The addition of section 28
to the present debate clearly makes this a charter discussion, given that the section 33
override may not affect gender equality, if that is the interpretation to be given to the texts
of the two sections.

[22] During the aforesaid case management conference, in addition to raising this issue
of law, which had not been submitted to the trial judge, and which is therefore not
addressed in his judgment, nor, in fact, in the initial notice of appeal, the parties were also
invited to address the possibility of bringing this issue of law before the Court at the stage
of appealing the refusal to grant a stay.

[23] Lastly, the appellants sought leave to adduce new evidence, namely, legislative
facts (briefs and reports filed during the National Assembly’s study of the Act), excerpts
from the debate journals, and new affidavits. This matter was referred to our panel. I will
now address it.

New evidence

[24] This evidence is admissible at this stage, because it is genuinely new, 14 because
it is indispensable, given that it may impact the outcome of the appeal,15 because the
circumstances are exceptional and because the ends of justice warrant it.16

[25] According to the jurisprudence, the Court can take judicial notice of certain
legislative facts such as Hansard or the debate journals and the briefs submitted when a
bill is being studied.17 In addition, in MacKay, the Supreme Court reiterated the need to

14 That is, it could not have been be filed in first instance, because it deals with subsequent facts regarding
the application of the Act after the judgment at first instance was rendered and the effects of this
application on female teachers; Gestions Shilaem inc. c. Agence du revenu du Québec, 2017 QCCA
1568, para. 38.
15 Gestions Shilaem inc. c. Agence du revenu du Québec, supra, note 14, para. 39.
16 Droit de la famille — 191159, 2019 QCCA 1096, para. 24; Commission des droits de la personne et
des droits de la jeunesse (Jalbert) c. Ville de Montréal (Service de police de la Ville de Montréal), 2019
QCCA 1435, para. 29.
17 Peter W. Hogg, Constitutional Law of Canada, vol. 2, 5th ed., Toronto, Carswell, 2016 (loose-leaf ed.,
update no. 1, 2015), pp. 60-14 to 60-19.
500-09-028470-193 PAGE: 7

present complete evidence in Charter cases. The assessment of the “balance of

convenience” and the appearance of right required in order to rule on the requested stay
is such that the Court must consider the potential impact of the impugned Act.18

[26] It should be noted that the new affidavits were submitted primarily by women in the
field of teaching who wear a hijab as a symbol in keeping with their religious convictions.
As previously mentioned, the events recounted in those affidavits satisfy the first test for
new evidence. Moreover, these affidavits describe the current situation and allow the
Court to note the effects of section 6 of the Act on the individuals claiming that they are
suffering harm due to the application of the Act. The change in their situation is therefore
liable to influence the Court’s reasoning on the application for a stay.19

The new issue

[27] As mentioned above, the parties were invited to present arguments on the effect
of the inapplicability of section 33 of the Canadian Charter to a possible violation of the
right guaranteed by section 28 of said Charter, as well as on the possibility of the Court
of Appeal being seized of that issue at this stage. The Supreme Court of Canada has
recognized an appellate court’s discretionary power to raise a new issue.20 Indeed, this
power stems from the role of the courts “to ensure that justice is done”.21 This power,
however, is limited by the very nature of our legal system. One of the core principles of
our adversarial system is that courts act as neutral arbiters deciding the issues the parties
have raised.22 These two observations led the Supreme Court to develop a test for
balancing the various factors an appellate court must weigh before raising a new ground
of appeal.23

[28] The principal question is whether failing to raise the issue would risk an injustice.
The Supreme Court, however, refused to list or define cases that might constitute a “risk
of injustice”. It did not want to unduly limit the power of appellate intervention. 24 Writing
for the Court, Rothstein, J., stated:25

18 MacKay v. Manitoba, [1989] 2 S.C.R. 357, pp. 361-362.

19 Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, pp. 154-155; R. c.
Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, para. 27.
20 The Supreme Court has defined a new issue as follows: “An issue is new when it raises a new basis
for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the
parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by
the parties (see Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 39) and cannot
reasonably be said to stem from the issues as framed by the parties.” R. v. Mian, 2014 SCC 54, [2014]
2 S.C.R. 689, para. 30 [Mian].
21 Mian, supra, note 20, paras. 37 and 40.
22 Id., para. 38.
23 Id., paras. 41-42.
24 Id., para. 45.
25 Id., paras. 46-47.
500-09-028470-193 PAGE: 8

[46] The determination of whether there is good reason to believe that a failure
to raise a new issue “would risk an injustice” requires performing a preliminary
assessment of the issue. The standard of “good reason to believe” that a failure to
raise a new issue “would risk an injustice” is a significant threshold which is
necessary in this context in order to strike an appropriate balance between the role
of appellate courts as independent and impartial arbiters with the need to ensure
that justice is done.

[47] At this stage, the merits of the issue will not yet have been argued or
decided. As such, the assessment of the issue is not a “full-fledged review”, but
rather is preliminary (W. (G.), at para. 20). In all cases where an appellate court is
considering whether to raise a new issue, it would be inappropriate for the court to
engage in any in-depth assessment of the merits of an issue at a stage where the
parties remain ignorant of the issue […].

[Emphasis added; italics in the original]

[29] Moreover, appellate courts must bear in mind a number of considerations when
exercising this discretionary power. In Mian, the Supreme Court established three
preconditions for identifying a new issue: (1) the appellate court must have jurisdiction to
consider the issue; (2) the appellate court must be “satisfied that there is a sufficient basis
in the record on which to resolve the issue”; and (3) the “appellate court should consider
whether there would be any procedural prejudice to either party”.26

[30] A preliminary remark must be made. Within the scope of an interlocutory injunction,
“[a] prolonged examination of the merits is generally neither necessary nor desirable”,
particularly when dealing with a matter that is not a pure question of law. 27 In the case at
hand, the new issue raised by the Court cannot be resolved definitively at this stage of
the proceedings. A hearing on the merits is required. Thus, the criteria outlined in Mian
must be analyzed in light of the particular circumstances of applications for a provisional
stay.

[31] In the present case, there are two possible interpretations regarding the risk of an
injustice. On the one hand, an appellate court is justified in raising a new issue if, after a
preliminary consideration of the appeal, it is of the opinion that there is a risk of irreparable
harm if the stay is refused and the new issue will have a significant impact on the outcome
of the appeal. In addition, the nature of the omitted ground may also be an indicator for
the Court. Here, the new issue concerns the application of the Canadian Charter and the
scope of fundamental rights—those it is possible to override with the notwithstanding
clause—as well as the guarantee of gender equality in section 28, which may be immune
to such a derogation. On the other hand, the exceptional nature of the application for a

26 Id., paras. 49-52.

27 RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, p. 338 [RJR-MacDonald].
500-09-028470-193 PAGE: 9

stay and the high threshold for intervention by the Court call for restraint. In any event,
the reasons of the Court of Appeal with respect to an application for a stay that is
provisional in nature should not be interpreted as a decision on the merits, that is, one on
the constitutionality of the Act.

[32] The idea of temporarily suspending a statute acknowledged as discriminatory

towards individuals who would normally be shielded from such discrimination is easy to
understand, as the very concept of fundamental rights implies that they must be immune
from the influence of temporary majorities who would like to abrogate, if even for a limited
time, the individual rights of members of protected minorities.

[33] Viewed from this perspective, it is clear that the allegedly privileged right to gender
equality guaranteed by section 28 is relevant to an analysis of the constitutionality of the
Act, just as it is relevant to an analysis of a possible suspension of the Act, because the
appellants submit that the facts in the record, including the new evidence, are sufficient
to allow for a preliminary consideration of the issue.

[34] First, according to the appellants, the wording of section 28 of the Canadian
Charter clearly indicates that section 33 of said Charter does not apply to it. They contend
that this interpretation is corroborated by the legislative history underlying the inclusion of
this provision in the Canadian Charter.

[35] Next, they argue that section 6 of the Act disproportionately affects female
teachers and therefore limits their right to practice their religion (s. 2(a) of the Canadian
Charter) and their right to equality (s. 15 of the Canadian Charter) in a discriminatory
manner. In addition, they argue that section 8 of the Act unequally limits the right to
freedom of religion and the right to equality of Muslim women, when compared with the
rights of men, whether Muslim or not.28 As a result, they claim that section 6 of the Act
violates the right guaranteed by section 28 of the Canadian Charter, because it
disproportionately limits the right of women to equality and to freedom of religion. 29
[36] While this issue cannot be resolved definitively at the provisional stay stage, the
Court must examine it carefully in order to determine whether it is serious, given the
Supreme Court’s indication that such an examination is important in light of the Canadian
Charter’s role in protecting fundamental rights and freedoms.30

[37] For her part, the respondent argues that section 28 of the Canadian Charter cannot
be invoked independently to invalidate a legislative provision.

[38] To adjudicate the new issue in order to decide on the application for a stay, it is
appropriate to consider whether the background to the enactment of the two relevant

28 Id., para. 46.

29 Id., paras. 54-56.
30 RJR-MacDonald, supra, note 27, p. 337.
500-09-028470-193 PAGE: 10

provisions of the Canadian Charter supports the respondent’s position or whether, on the
contrary, such support is dubious.

The legislative history of sections 28 and 33

[39] As stated above, section 28 of the Canadian Charter provides that the rights and
freedoms listed in said Charter are “guaranteed equally to male and female persons”, the
whole “notwithstanding anything” in the Charter. At the stage of an application for a stay,
it is sufficient to establish that the appellants’ interpretation of section 28 raises a serious
constitutional issue.31

[40] In the Big M decision, the Supreme Court of Canada explained that the
interpretation of a right guaranteed by the Canadian Charter must be made on the basis
of its purpose:32

The meaning of a right or freedom guaranteed by the Charter was to be

ascertained by an analysis of the purpose of such a guarantee; it was to be
understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or

freedom in question is to be sought by reference to the character and the larger
objects of the Charter itself, to the language chosen to articulate the specific right
or freedom, to the historical origins of the concepts enshrined, and where
applicable, to the meaning and purpose of the other specific rights and freedoms
with which it is associated within the text of the Charter. The interpretation should
be, as the judgment in Southam emphasizes, a generous rather than a legalistic
one, aimed at fulfilling the purpose of the guarantee and securing for individuals
the full benefit of the Charter’s protection. At the same time it is important not to
overshoot the actual purpose of the right or freedom in question, but to recall that
the Charter was not enacted in a vacuum, and must therefore, as this Court’s
decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357,
illustrates, be placed in its proper linguistic, philosophic and historical contexts.
[Emphasis added]
[41] In the present case, the legislative history and the wording of sections 28 and 33(1)
of the Canadian Charter are indispensable to their interpretation.

[42] The appellants contend that the text of section 28 clearly indicates that section 33
cannot apply to it. They argue that the insertion of the words “[n]otwithstanding anything
in this Charter” means that the legislature intended to prohibit any interpretation of the
Canadian Charter that would derogate from the principle of male-female equality.

31 RJR-MacDonald, supra, note 27, pp. 337-338.

32 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, p. 344 [Big M].
500-09-028470-193 PAGE: 11

[43] As for section 33 (1) of the Canadian Charter, it expressly states that a provincial
legislature or Parliament can adopt an Act in which it “expressly declare[s] [...] that the
Act or a provision thereof shall operate notwithstanding a provision included in section 2
or sections 7 to 15”.

[44] Indeed, for purposes of this appeal, it is appropriate to consider the historical
background to these sections. In addition, the historical origin of section 28 of the
Canadian Charter is well documented.

[45] Parliament voted on the wording of this section on November 24, 1981, after
parliamentary debates and public consultations that spanned months. In Syndicat de la
fonction publique c. Procureur général du Québec, Carole Julien, J.S.C., set out the
historical context that led to the adoption of section 28 of the Canadian Charter:33

[TRANSLATION]

[1408] According to the Canadian Advisory Council on the Status of Women,

women insisted on asserting the right to gender equality in connection with the
advent of the Canadian Charter.

[1409] They obtained the protection granted by section 15. However they were
concerned about the scope of section 1 being construed as limiting the rights
protected by the Canadian Charter:

s 1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.

[1410] Women’s groups were of the opinion that the wording of section 1 deviated
from the international standard set out in the 1966 Covenant.

[1411] Women sought a declaration of intent guaranteeing the rights and

freedoms set out in the Canadian Charter equally to men and women.

[1412] This guarantee was not incorporated in section 1. It made its appearance
in the form of section 28, on April 21, 1981. Its aim was to ensure the equality of
both female and male persons regardless of the other provisions of the Canadian
Charter.

[1413] Later, in November 1981, following a federal - provincial conference, section

33 was introduced into the Canadian Charter. This section allowed provincial

33 Syndicat de la fonction publique c. Procureur général du Québec, [2004] R.J.Q. 21 (Sup. Ct.), paras.
1408-1414.
500-09-028470-193 PAGE: 12

governments to override the rights enshrined in the Canadian Charter, including

the right to gender equality protected by sections 15 and 28.

[1414] Women’s groups mobilized anew. On November 24, 1981, the federal and
provincial governments agreed to remove the express reference to section 28 from
the wording of section 33 which, henceforth, read as follows:

s. 33 Parliament or the legislature of a province may expressly declare in an

Act of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.

[Emphasis added; references omitted]

[46] The legislative history of the Canadian Charter shows that the addition of the
notwithstanding clause was accompanied by an amendment to the proposed text of
section 28 to specify that section 33 applied to it. Similarly, the proposed text of section
33 indicated that a declaration under that section could cover section 28.34 It was only on
November 24, 1981 that Parliament voted to withdraw section 28 from the application of
section 33.

[47] The parties will have the opportunity to present a complete and detailed study of
the interpretation and application of this section at the hearing on the merits in first
instance. Evidently, the purposive approach to the interpretation of a Charter right
requires an analysis of a number of factors. The fact remains that the appellants’ proposal
regarding the interpretation of section 28 is, at the very least, serious at this stage.

[48] It is therefore premature to conclude that the effect of the override declaration set
out in section 34 of the Act respecting the laicity of the State operates to exclude any
possible challenge from a discrimination perspective.

[49] As previously mentioned, to date, no appellate court has considered the interplay
between sections 28 and 33 of the Canadian Charter. The Court need not answer the
question, but it must, for purposes of the application for a stay, assess the seriousness of
the appellants’ arguments.

[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

34 House of Commons, House of Commons Journals, 32nd Parl., 1st sess., vol. 126, pp. 4014-4015. See
also: House of Commons, House of Commons Debates, 32nd Parl., 1st sess., no. 11, November 9,
1981, p. 12634 (Hon. P.E. Trudeau).
500-09-028470-193 PAGE: 13

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

[51] Peter Hogg suggests that the purpose of section 28 requires that it be juxtaposed
with the other provisions of the Canadian Charter:

Section 28 provides that the rights and freedoms referred to in the Charter “are
guaranteed equally to male and female persons”. This falls short of a requirement
of the equal treatment of “male and female persons”, presumably because that
objective is attained by the general equality clause of s. 15. All that s. 28 seems to
require is that the other provisions of the Charter be implemented without
discrimination between the sexes. To the extent that the other provisions of the
Charter would apply equally to male and female persons anyway, s. 28 has very
little work to do.

Within its narrow sphere of application, s. 28 is a stronger guarantee than s. 15 in

at least two, and perhaps three, respects: (1) the three-year delay in the coming
into force of s. 15 (by virtue of s. 32(2)) did not apply to s. 28; (2) the power of the
legislative override (under s. 33) applies to s. 15, but not to s. 28; and (3) it is
possible that even the limitation clause (s. 1) does not qualify s. 28, having regard
to s. 28’s opening words, “Notwithstanding anything in this Charter”.36

[Emphasis added]

[52] While, under normal circumstances, the existence of section 15(1) makes section
28 superfluous in matters of discrimination, section 33 points to a purpose for a “double
guarantee”. Authors Henri Brun, Guy Tremblay and Eugénie Brouillet are also of the view
that section 28 precludes the application of the override provision to the gender-based
discrimination prohibited by section 15(1):

[TRANSLATION]

Section 28 provides that the rights in the Charter are guaranteed equally to male
and female persons, notwithstanding anything in the Charter. As regards the rights
in the Charter, gender-based discrimination is therefore prohibited,
notwithstanding the other sections of the Charter. Thus, section 33, which provides
for the possibility to expressly override rights, could not apply to the gender-based
discrimination prohibited by subsection 15(1): Boudreau v. Lynch, (1985) 16 D.L.R.
(4th) 610 (N.S. C.A.). On the other hand, it is difficult to conclude that section 28
precludes the application of section 1 and subsection 15(2) of the Charter in cases

35 Kerri Anne Froc, The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms,
Ph.D. thesis in philosophy, Queen’s University, 2015, p. 380 [unpublished].
36 Peter W. Hogg, Constitutional Law of Canada, vol. 2, 5th ed., Toronto, Carswell, 2016 (loose-leaf ed.,
update no. 1, 2010), pp. 55-64 and 55-65.
500-09-028470-193 PAGE: 14

of gender-based discrimination: this would mean that any affirmative action in

favour of women, or potentially men, would be impossible. In our opinion, section
1 and subsection 15(2) apply to gender-based discrimination just as they apply to
the other types of discrimination prohibited by subsection 15(1), notwithstanding
the wording of section 28, because they are essentially clauses aimed at
explaining the meaning of the right to equality set out in subsection 15(1), and not
clauses aimed at allowing section 15 to be overridden or circumvented. Section 28
makes gender equality ubiquitous, in the sense that it must be considered when
interpreting the other rights enshrined in the Charter. Such an acknowledgement
of the value of equality between men and women does not, however, exempt the
courts in any manner whatsoever from considering all factors relevant to the
specific cases before them. The contextual approach still applies.37

[53] The appellants contend that the evidence presented at first instance, as well as
the new evidence, leads to the conclusion that there is a prima facie violation of section
28.

[54] In support of their ground, the appellants have presented evidence according to
which, until now, women have comprised the vast majority of approximately 100,000
teachers in Quebec, namely, 88% of elementary school teachers and 61% of high school
teachers.38 Thus, even assuming that men and women were to wear religious symbols in
the same proportion, the Act would have a much greater impact on female teachers.
Moreover, the appellants submit that the Act has a discriminatory effect on Muslim
women. They submit that the new affidavits demonstrate that Muslim female teachers
who wear the Islamic headscarf are the most affected by the Act. At this stage of the
proceedings, the evidence is sufficient to establish on a prima facie basis that the female
teachers in question suffer discrimination that male teachers, whether or not they are
Muslim, do not.

[55] Consequently, in my view, this new issue is relevant and admissible for purposes
of this appeal.

The applicable tests for obtaining a stay

[56] When the appellants proceeded in first instance, they were unable to demonstrate
the adverse effect of the Act, which had just come into force. They contend that the judge
mistakenly concluded that any future injury was necessarily hypothetical. In their opinion,
the judge should, instead, have determined whether the evidence showed a “high degree
of probability that the harm will in fact occur”.39

37 Henri Brun, Guy Tremblay and Eugénie Brouillet, Droit constitutionnel, 6th ed., Cowansville, Éditions
Yvon Blais, 2014, p. 1006.
38 Exhibit P-23A, A.M., vol. 3, p. 579; Exhibit P-23B, A.M., vol. 3, p. 580.
39 Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, para. 35.
500-09-028470-193 PAGE: 15

[57] We have moved beyond this stage.

[58] Similarly, the appellants point out that the judge came to a mistaken conclusion
when he stated that the harm stems solely from a violation of rights guaranteed by the
Charters and covered by the override. In their view, a straightforward reading of sections
6 and 8 of the Act makes it clear that people who wear religious symbols will be prevented
from working.

[59] Once again, we have moved beyond this stage. The female teachers and teachers
in training who signed new affidavits, all of whom are Muslim women, were refused
employment opportunities by Montreal school boards because they wear the hijab as a
religious symbol. Moreover, these women state that the effects of the Act are causing
them immediate financial difficulties, as well as huge uncertainty regarding their ability to
pursue the career for which they have trained.

[60] There is therefore prima facie evidence of an immediate violation of the equality
rights of female teachers who wear the Islamic headscarf. Since the evidence on this
point is silent regarding the wearing of the niqab, I will limit myself to a consideration of
section 6 of the Act.

[61] To date, this evidence has not been contradicted. One must conclude therefrom
that section 6 of the Act seems to create a disproportionate and immediate limit on the
right of women to equality and freedom of religion as compared with men, whether or not
they are Muslim, which is a potential infringement of s. 28 of the Canadian Charter. The
urgency test has therefore been met, if indeed it need be, because a “grandfather”
provision already protects the positions (but not the possibility of advancement) of female
teachers who are already employed and who wear religious symbols or would like to do
so one day.

[62] Since the rulings in Metropolitan Stores and RJR-MacDonald, a party seeking to
suspend the application of a statute must demonstrate that it meets the following tests:

First, a preliminary assessment must be made of the merits of the case to ensure
that there is a serious question to be tried. Secondly, it must be determined
whether the applicant would suffer irreparable harm if the application were refused.
Finally, an assessment must be made as to which of the parties would suffer
greater harm from the granting or refusal of the remedy pending a decision on the
merits.40

40 RJR-MacDonald, supra, note 27, p. 334.

500-09-028470-193 PAGE: 16

[63] Certain courts, however, have opined that the aforementioned criteria must not be
applied mechanically:41

[19] It is trite law that the three factors do not form a checklist of items each of
which must be satisfied before injunctive relief may be granted. As stated by
McLachlin J.A. (as she then was) for this court in British Columbia (Att’y-General)
v. Wale (1986) 9 B.C.L.R. (2d) 333, aff’d. [1991] 1 S.C.R. 62, the three parts of the
test are not intended to be separate watertight compartments, but factors that
“relate to each other”, such that “strength on one part of the test ought to be
permitted to compensate for weakness on another.” (At 346‒7.) Further, she
observed:

The checklist of factors which the courts have developed – relative

strength of the case, irreparable harm, and balance of convenience –
should not be employed as a series of independent hurdles. They should
be seen in the nature of evidence relative to the central issue of assessing
the relative risks of harm to the parties from granting or withholding
interlocutory relief. [At 347.]

Appearance of right

[64] The applicable legal standard for determining whether there is an appearance of
right in constitutional matters is that of the “serious question”. At the hearing, the
respondent conceded the serious nature of the equality of rights between men and
women that section 28 possibly raises. I have already addressed this mater by looking at
the wording and history of this section. Moreover, the judge of first instance acknowledged
the seriousness of the appearance of right of the other grounds raised by the appellants
and his analysis was not challenged before us.

Irreparable harm

[65] As for the second test, that of irreparable harm, the jurisprudence has established
that, at this stage, the issue is “whether a refusal to grant relief could so adversely affect
the applicants’ own interests that the harm could not be remedied if the eventual decision
on the merits does not accord with the result of the interlocutory application”.42

41 Cambie Surgeries Corporation v. British Columbia (Attorney General), 2019 BCCA 29, para. 19
(Newbury, J.A.). See also: Mosaic Potash Esterhazy Limited Partnership v. Potash Corporation of
Saskatchewan Inc., 2011 SKCA 120, para. 26; Livent Inc. v. Deloitte & Touche, 2016 ONCA 395,
para. 5 (Strathy, C.J.O.); SkyCope Technologies Inc. v. Jia, 2018 BCSC 2204, para. 15; British
Columbia (Attorney General) c. Alberta (Attorney General), 2019 FC 1195, para. 96; Stebner v.
Saskatchewan (Information and Privacy Commissioner), 2019 SKQB 91, para. 79.
42 RJR-Macdonald, supra, note 27, p. 341.
500-09-028470-193 PAGE: 17

[66] “Irreparable”, in these circumstances, “refers to the nature of the harm suffered
rather than its magnitude”43 and means harm “not susceptible or difficult to be
compensated in damages”.44

[67] The party seeking a stay must prove well-defined harm.45 In a recent judgment of
the Federal Court, Justice Sébastien Grammond provided the necessary nuances
regarding the burden of proof required for a provisional stay:46

[136] The burden of proving irreparable harm falls upon the party seeking an
injunction. It has been difficult to describe the standard of proof, because the
exercise is necessarily forward-looking and, as the Saskatchewan Court of Appeal
noted, it “involves, and must involve, a weighing of risks rather than a weighing of
certainties” (Mosaic Potash, at paragraph 58). In that exercise, one must take into
account “both the likelihood of the harm occurring and its size or significance” (ibid,
at paragraph 59). In reviewing assertions of irreparable harm, this Court has often
used strong language that may be thought to amount to a requirement of certainty.
However, such language is mainly used to impress on applicants the need to
provide evidence that goes beyond mere speculation or hypotheses about future
harm, in cases that fall well short of the mark. In a recent case, Justice David
Stratas of the Federal Court of Appeal provides a useful review of the jurisprudence
and summarizes the applicable test as follows: “The burden on a moving party
seeking a stay is to adduce specific, particularized evidence establishing a
likelihood of irreparable harm” (Canada (Attorney General) v Oshkosh Defense
Canada Inc., 2018 FCA 102 at paragraph 30, emphasis mine).

[68] The appellants are right on this ground of appeal, as they have established not
only the likelihood, but the occurrence of irreparable harm for several women, particularly
when they point to the decision in Wallace v. United Grain Growers Ltd., in which the
Supreme Court acknowledged that “for most people, work is one of the defining features
of their lives. Accordingly, any change in a person’s employment status is bound to have
far-reaching repercussions”.47

[69] In the Reference re Public Service Employee Relations Act (Alta.),48 Dickson, C.J.,
explained the fundamental role of employment in an individual’s life:

Work is one of the most fundamental aspects in a person’s life, providing the
individual with a means of financial support and, as importantly, a contributory role

43 Id., p. 348.
44 Metropolitan Stores, supra, note 19, p. 128.
45 Fédération des coopératives funéraires du Québec c. Bureau de normalisation du Québec, 2009 QCCA
2445, para. 17 (Kasirer, J.A.); Montréal (Ville de) c. Lours, 2016 QCCA 1931, para. 20.
46 British Columbia (Attorney General) v. Alberta (Attorney General), supra, note 41, para. 136.
47 Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, para. 94.
48 [1987] 1 S.C.R. 313, p. 368.
500-09-028470-193 PAGE: 18

in society. A person’s employment is an essential component of his or her sense

of identity, self-worth and emotional well‑being. Accordingly, the conditions in
which a person works are highly significant in shaping the whole compendium of
psychological, emotional and physical elements of a person’s dignity and self-
respect. In exploring the personal meaning of employment, Professor David M.
Beatty, in his article “Labour is Not a Commodity”, in Studies in Contract Law
(1980), has described it as follows, at p. 324:

As a vehicle which admits a person to the status of a contributing, productive,

member of society, employment is seen as providing recognition of the
individual’s being engaged in something worthwhile. It gives the individual a
sense of significance. By realizing our capabilities and contributing in ways
society determines to be useful, employment comes to represent the means
by which most members of our community can lay claim to an equal right of
respect and of concern from others. It is this institution through which most of
us secure much of our self-respect and self-esteem.

[70] In light of the new issue raised by the Court, one can confirm that female teachers
will suffer irreparable harm due to the application of section 6 of the Act if the stay is not
granted. It is generally acknowledged that the harm caused by a violation of a right
guaranteed by the Canadian Charter is difficult to quantify.49 One of the main reasons is
that, with few exceptions, a declaration of invalidity under section 52 of the Constitution
Act, 1982 cannot result in an award of damages:

79 […] Thus, the government and its representatives are required to exercise
their powers in good faith and to respect the “established and indisputable” laws
that define the constitutional rights of individuals. However, if they act in good faith
and without abusing their power under prevailing law and only subsequently are
their acts found to be unconstitutional, they will not be liable. Otherwise, the
effectiveness and efficiency of government action would be excessively
constrained. Laws must be given their full force and effect as long as they are not
declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad
faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The
Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)).

[…]

81 In short, although it cannot be asserted that damages may never be

obtained following a declaration of unconstitutionality, it is true that, as a rule, an
action for damages brought under s. 24(1) of the Charter cannot be combined with

49 RJR-MacDonald, supra, note 27, p. 342; 143471 Canada Inc. v. Quebec (Attorney General);
Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339, pp. 382-383.
500-09-028470-193 PAGE: 19

an action for a declaration of invalidity based on s. 52 of the Constitution Act,

1982.50

[71] The new affidavits refer to the situation of women who wear the Islamic headscarf
and have applied for teaching jobs since the Act came into force. Several were offered
employment provided they stop wearing the hijab in accordance with section 6 of the Act,
which they refused to do because of their religious convictions and because they would
feel as if they were losing their identity. They allege various types of harm: 51 financial
problems, psychological problems, humiliation, obstacles to pursuing the career of their
choice, and obstacles to advancing in their careers because they cannot exercise another
function within the same school board or change to another school board.52

[72] In summary, it appears at this stage that the risk of suffering irreparable harm has
materialized for some female teachers or future teachers, all of whom are women, who
aspired to a career in teaching. The harm will continue to exist for the others who will have
to give up their chosen career or move out of the province because they do not want to
give up wearing a religious symbol.

Balance of convenience

[73] As for the harm the Attorney General of Quebec will suffer if a stay is ordered, one
must presume, as is generally the case, that the stay will cause irreparable harm to the
public interest.53 In the present case, the respondent has not raised any argument other
than the fact that, at this stage of the proceedings, there is a presumption that the
legislative measure was enacted for the benefit of the public. It should also be noted that
when the appropriateness of staying the application of a statute was weighed in the past,
it did not involve a statute incorporating the override in section 33 of the Canadian Charter,
that is, a case in which the fundamental rights of several individuals are being infringed,
with the resulting inequality for women.

[74] In the case at bar, only female teachers or future female teachers provided
evidence that the Act is causing them serious and irreparable harm.

[75] The question therefore is whether, because the legislature has used a
notwithstanding clause—whose application in the case at bar may be doubtful—the

50 Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, paras. 79 and 81.
51 Affidavit of F.B. and Exhibit FB-1, A.M., vol. 4, pp. 1035-1040; Affidavit of R.M. and Exhibit RM-1 and
RM-2, A.M., vol.4, pp. 1041-1048; Affidavit of S.B.R. and Exhibit SBR-1, A.M., vol. 4, pp. 1049-1055;
Affidavit of M.G. and Exhibit MG-1, A.M., vol.4, pp. 1077-1083; Affidavit of Mariam Najdi and Exhibits
MN-1 to MN-4, A.M., vol. 4, pp. 1084-1097; Affidavit of Nafeesa Salar and Exhibits NS-1 to NS-4, A.M.,
vol. 4, pp. 1098-1102.
52 Subsection 31(5) ARLS, supra, note 1.
53 Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764, para. 9; RJR-MacDonald, supra, note 27,
pp. 348 and 349.
500-09-028470-193 PAGE: 20

courts must refuse to suspend the Act even though several persons have submitted
serious questions regarding the validity of the Act and are suffering serious and
irreparable harm.

[76] I do not think so. In the present case, the notwithstanding clause does not preclude
an examination of the balance of convenience and the public interest.

[77] Furthermore, as the Supreme Court noted in RJR-MacDonald, the Canadian

Charter imposes a responsibility on the courts to safeguard fundamental rights:

On the other hand, the Charter charges the courts with the responsibility of
safeguarding fundamental rights. For the courts to insist rigidly that all legislation
be enforced to the letter until the moment that it is struck down as unconstitutional
might in some instances be to condone the most blatant violation of Charter rights.
Such a practice would undermine the spirit and purpose of the Charter and might
encourage a government to prolong unduly final resolution of the dispute.54

[78] The public’s interest in seeing to it that female teachers are immediately targeted
by the legislative measure is not greater than the interest of the group of female teachers
in question.

[79] There are several elements that support this proposition. First, the legislature itself
provided a grandfather clause that allows female teachers who wore a religious symbol
on March 27, 2019 to continue to do so as long as they exercise the same function within
the same school board.55 There is therefore no urgent harm to be eradicated; otherwise,
such a transitional measure would not have been introduced. One must keep in mind that
“[t]he weight accorded to public interest concerns is partly a function of the nature of
legislation generally, and partly a function of the purposes of the specific piece of
legislation under attack”.56

[80] Moreover, allowing the female teachers’ fundamental rights to be respected during
the proceedings is not a measure with far-reaching effects.57 The public interest must be
assessed in light of all the circumstances. Here, if the legislature, in its wisdom, thought
that grandfathering the rights of those already in their positions — who will continue to
teach while wearing religious symbols — does not harm the public interest, a temporary
stay of a single provision of the Act, liable to allow a few more individuals to teach while
wearing the hijab, would not, in my humble opinion, harm the public interest.

54 RJR-MacDonald, supra, note 27, p. 333.

55 Section 31 ARLS., supra, note 1.
56 RJR-MacDonald, supra, note 27, p. 351.
57 Id., p. 333.
500-09-028470-193 PAGE: 21

[81] In addition, ordering a partial stay of the Act is certainly not intended to immediately
grant the appellants what they ultimately seek in their case,58 but merely to allow them to
argue the invalidity of the Act. If, at the end of the process, the female teachers do not
win their case, they will have to comply with the Act. If, however, they are ultimately
successful, society will, in the meantime, have benefited from their practise of the
profession.

[82] Without in any way pre-judging the outcome of the appeal, which will be heard in
October 2020, it would be best to prioritize respect for fundamental rights during the
proceedings, considering the obligation of the courts to ensure respect for those rights,
rather than deprive individuals of their fundamental rights, even for a limited time.

[83] Lastly, there will always be time for the notwithstanding clause to play its role fully
if the proceedings regarding the constitutionality of the Act are dismissed.

[84] For these reasons, I would allow the appeal in part and suspend, during the
proceedings, the application of section 6 of the Act respecting the laicity of the State to
the persons listed in paragraph 10 of Schedule II of said Act.

NICOLE DUVAL HESLER, C.J.Q.

58 See, a contrario: Harper v. Canada (Attorney General), supra, note 53, para. 7.
500-09-028470-193 PAGE: 22

MOTIFS DE LA JUGEBÉLANGER, J.A.

[85] I agree with the Chief Justice that the issue of section 28 of the Canadian Charter
(the “Charter”) was properly raised and that the fresh evidence should be admitted,
because new facts have arisen since the judgment at first instance was rendered.

[86] I also agree with the Chief Justice that the evidence shows that female teachers
who wear the veil are suffering serious and irreparable harm during the proceedings as a
result of the Act respecting the laicity of the State (the “Act”). Where my opinion differs,
however, is on the application of the balance of convenience test, given the legislature’s
use of the notwithstanding clause.

[87] The case raises serious constitutional issues, as well as the issue of the impact of
section 28 of the Charter on the possibility of using the notwithstanding clause within the
scope of the Act.

[88] Section 28 of the Charter states “[that n]otwithstanding anything in this Charter,
the rights and freedoms in it are guaranteed equally to male and female persons”. It will
be up to the judge who will hear the case in October 2020 to decide on the impact of
section 28 on the notwithstanding clause. If the argument is successful, it could indicate
that the legislature cannot use the notwithstanding clause with respect to the right to
equality between the sexes. Although it is not appropriate for the Court to rule on the
merits of this issue within the scope of the appeal, all agree that the issue is a serious
one.

[89] Several affidavits refer to the situation of women who wear the veil and have
applied for teaching jobs since the Act came into force. Several were offered employment
provided they stop wearing the veil, which they refused to do because of their religious
convictions or because they would feel as if they were losing their identity.59 As an
example, here is a passage from a letter sent by a school board to one of these women
at the start of the school year:

[TRANSLATION]

At the information session for new teaching staff, you were wearing a religious
symbol. Following this session, a senior member of our department asked you, in
private, whether you intended to wear your religious symbol while performing your
teaching functions. You answered that you would agree to remove it behind closed

59 As such, the affidavits do not pertain to section 8, but only to section 6 of the Act.
500-09-028470-193 PAGE: 23

doors at the elementary level, but not at the high school level. You also mentioned
that the meaning of the symbol to you was traditional rather than religious.

Given that you were hired by the school board as a teacher after March 27, 2019,
you cannot wear a religious symbol while performing your teaching functions, the
whole in accordance with the Act respecting the laicity of the State.

On August 29, 2019, a letter was sent to you indicating that you had until
September 13, 2019 to reconsider your decision to wear a religious symbol while
performing your teaching functions.

Given that we have not heard from you to confirm that you will comply with the
requirements of the Act respecting the laicity of the State, please be advised that
we are closing your teaching file as at the date hereof.60

[90] For this teacher and several others in the same situation, the risk of suffering
irreparable harm has therefore materialized.

[91] The harm the Attorney General of Quebec would suffer if a stay were ordered
would be harm to the public interest.61 The Attorney General has rightly invoked the
presumption that the legislative measure is in the common interest.62 At this stage of the
proceedings, the Court must proceed on the assumption that the Act serves a valid public
purpose. Unless it is clear that the enactment does not have a valid public purpose, the
courts must assume it does.

[92] It follows from this principle that courts will not suspend a statute passed by a
legislature without having performed a full constitutional review. Consequently, a stay will
only be ordered in clear cases.63

[93] We must recognize that, despite the presence of serious issues, this is not a clear
case in which we can, at this point in time, state that the Act is unconstitutional. The
Attorney General is also correct in submitting that it is not clear that section 28 of the
Charter precludes the Quebec legislature from invoking the notwithstanding clause.

[94] In order to grant the stay, it would have to be clearly shown that section
28 precludes the legislature from using the notwithstanding clause to adopt legislation
that violates equality between the sexes. It would also have to be just a clear that the Act
respecting the laicity of the State affects equality between the sexes. While it would seem

60 Exhibit NS-4.
61 Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, para. 9.; RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, pp. 348 and 349.
62 Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, p. 135.
63 Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, para. 9.
500-09-028470-193 PAGE: 24

that women are affected by the Act more than men are, this demonstration will require
more exhaustive evidence.

[95] What is clear, however, is that the persons referred to in the Act are unable to
invoke their fundamental rights and their individual liberties, given the legislature’s use of
the notwithstanding clause set out in sections 33 and 34 of the Act. And it is equally
apparent that their fundamental rights are being violated.

[96] 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.

[97] 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.

[98] Even in the absence of an urgent evil to eradicate or a situation affecting a pressing
public need (as was the case, for example, in RJR MacDonald, where an important public
health issue was involved), it is not for the courts to interfere in the legislature’s choice to
define the public interest as it sees fit.

[99] One last comment in closing. For more than 35 years, Canadians courts have
ensured respect for the fundamental rights and individual liberties of individuals in Quebec
and in Canada, including the right to equality. As the Supreme Court noted in RJR, the
Charter imposes that responsibility on them.64

[100] 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. I acknowledge, however, that it may seem counterintuitive
to ask the courts to set aside certain fundamental rights whose respect they have worked
for decades to ensure. This is likely why the judge of first instance found it necessary to
indicate six times in his judgment that no argument regarding the use of the
notwithstanding clause had been made before him.65

[101] 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.

64 RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, p. 333.

65 See paragraphs 46, 61, 74, 87, 118 and 125 of the judgment under appeal.
500-09-028470-193 PAGE: 25

[102] Consequently, I would dismiss the appeal, without costs, given the nature and
seriousness of the issues raised.

DOMINIQUE BÉLANGER, J.A.

500-09-028470-193 PAGE: 26

REASONS OF MAINVILLE, J.A.

[103] It has long been well-established that a party seeking to stay the application of a
statute must demonstrate that it meets the following tests: first, a preliminary assessment
must be made of the merits of the case to ensure that there is a serious question to be
tried. Second, it must be determined whether the applicants or the persons on whose
behalf they claim to act would suffer irreparable harm if the application were refused.
Finally, an assessment must be made as to which of the parties would suffer greater harm
from the granting or refusal of the relief pending a decision on the merits: Manitoba
(Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR – MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

[104] In this regard, the third test—assessing where the balance of convenience lies—
is particularly relevant, because it is here that the public interest, which is presumed to be
reflected in the impugned legislation, must be considered and given the weight it should
carry: RJR – MacDonald Inc. v. Canada (Attorney General), supra, pp. 342-347. As
Sopinka and Cory, JJ., noted in RJR – MacDonald, p. 346, “[a] court should not, as a
general rule, attempt to ascertain whether actual harm would result from the restraint
sought”, because doing so “would in effect require judicial inquiry into whether the
government is governing well”, which is not the role of the courts. On the contrary, the
court should in most cases assume that irreparable harm to the public interest would
result from a suspension of the statute.

[105] Courts are very familiar with these rules, including the rule pertaining to what is
often referred to as the presumption of the validity of laws. In this regard, it is appropriate
to cite the following passage from the decision of the Supreme Court of Canada in Harper
v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, para. 9:

[9] Another principle set out in the cases is that in considering the grant of an
interlocutory injunction suspending the operation of a validly enacted but
challenged law, it is wrong to insist on proof that the law will produce a public good.
Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ.
stated in RJR--Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R 311,
at pp. 348-49

When the nature and declared purpose of legislation is to promote the public
interest, a motions court should not be concerned whether the legislation actually
has such an effect. It must be assumed to do so. In order to overcome the assumed
benefit to the public interest arising from the continued application of the
500-09-028470-193 PAGE: 27

legislation, the applicant who relies on the public interest must demonstrate that
the suspension of the legislation would itself provide a public benefit.

It follows that in assessing the balance of convenience, the motions judge must
proceed on the assumption that the law — in this case the spending limits imposed
by s. 350 of the Act — is directed to the public good and serves a valid public
purpose. This applies to violations of the s. 2(b) right of freedom of expression;
indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumption
of the public interest in enforcing the law weighs heavily in the balance. Courts will
not lightly order that laws that Parliament or a legislature has duly enacted for the
public good are inoperable in advance of complete constitutional review, which is
always a complex and difficult matter. It follows that only in clear cases will
interlocutory injunctions against the enforcement of a law on grounds of alleged
unconstitutionality succeed.

[Emphasis added]

[106] When a judgment granting or refusing a stay of the application of a statute is

appealed, an appellate court can intervene only in rare circumstances. Indeed, the
decision to grant or refuse such a remedy is a discretionary exercise on the part of the
judge of first instance and an appellate court must not interfere solely because it would
have exercised the discretion differently. In Metropolitan Stores, pp. 155-156, the
Supreme Court of Canada specified the circumstances under which the exercise of that
discretionary power can be overturned on appeal and they were recently reiterated by
Brown, J., writing for a unanimous Supreme Court in R. v. Canadian Broadcasting Corp.,
2018 SCC 5, [2018] 1 S.C.R. 196, para. 27:

Appellate intervention is justified only where the chambers judge proceeded “on a
misunderstanding of the law or of the evidence before him”, where an inference
“can be demonstrated to be wrong by further evidence that has [since] become
available”, where there has been a change of circumstances, or where the
“decision to grant or refuse the injunction is so aberrant that it must be set aside
on the ground that no reasonable judge [. . .] could have reached it”.

[107] These principles having been established, how do they apply to the present
appeal?

[108] The appellants contend that certain members of the public would suffer serious
and irreparable harm from the application of the following rules established by the Act
respecting the laicity of the State and that this harm justifies an immediate suspension of
these rules:

(a) the rule set out in the second paragraph of s. 8 of the Act, which requires
members of the public to have their face uncovered to receive a service
500-09-028470-193 PAGE: 28

provided by a personnel member of a body listed in Schedule I or by a person

mentioned in Schedule III of the Act, when doing so is necessary to allow their
identity to be verified or for security reasons; the services in question are
primarily services provided by Quebec’s public, parapublic and municipal
sectors, establishments akin thereto and certain people closely related to the
public sector, such as members of the National Assembly, elected municipal
officers, peace officers and physicians (collectively referred to in these reasons
as the “public sector”);

(b) the rule set out in the first paragraph of s. 8 of the Act, which requires public
sector personnel to exercise their functions with their face uncovered; and

(c) the rule set out in s. 6 of the Act, which prohibits the wearing of religious
symbols in the exercise of the functions listed in Schedule II; the functions in
question are primarily that of police officer, teacher, school principal and judicial
personnel member (excluding judges, but including commissioners, arbitrators
and lawyers who act on behalf of the State).

[109] There is no evidence in the appeal record, as constituted, leading to the

reasonable belief that serious and irreparable harm would result from the requirement to
receive public sector services with one’s face uncovered if doing so is necessary to allow
one’s identity to be verified or for security reasons. Indeed, none of the numerous
affidavits filed by the appellants addresses the rule set out in the second paragraph of
s. 8 of the Act or its effects.

[110] Similarly, the record contains no evidence of serious and irreparable harm resulting
from the rule set out in the first paragraph of s. 8 of the Act, which requires public sector
personnel members to exercise their functions with their face uncovered. There is no
affidavit establishing the fact that a public sector personnel member would lose their
employment as a result of the application of this rule or that an applicant for a position in
the public sector would have actually been refused employment for this reason.

[111] It should be noted that, subject to section 6, the Act does not prohibit the wearing
of religious symbols while exercising functions in the public sector, such that positions
within the provincial public service, municipal governments, hospitals, daycares, etc., as
well as the functions of elected officials (except for the president and vice-presidents of
the National Assembly), physicians, etc. can be exercised while a religious symbol is
worn, provided one’s face remains uncovered.

[112] Nevertheless, it is possible that a position in the public sector may be denied to a
person who covers their face due to a religious belief. In the absence of evidence,
however, such a situation appears hypothetical at this time. The evidence in the appeal
record is therefore clearly insufficient to justify an immediate suspension of the first
paragraph of s. 8 of the Act.
500-09-028470-193 PAGE: 29

[113] As for the rule set out in s. 6, which requires police officers, teachers, school
principals and judicial personnel to refrain from wearing religious symbols in the exercise
of their functions, it is important to note that it does not apply to those currently employed,
but only to new hires and individuals being promoted. Nonetheless, the evidence reveals
that, in certain cases, this rule indeed results in harm that could be characterized as
serious and irreparable. Notwithstanding that the prohibition in the Act does not extend
beyond work hours and therefore allows those concerned to wear religious symbols when
they are not exercising their functions, there may be instances of new hirings or
promotions where the rule in the Act would be at odds with the sincere religious
convictions of an individual, making access to these positions impracticable.

[114] The vast majority of the main religions practised in Quebec, including Christianity,
Judaism and Islam, do not, at first glance at least, seem to make the wearing of religious
symbols at work an absolute requirement of the faith. At least, this has not been proved
at this stage of the file. The Act, therefore, does not seek to prohibit access to these
positions for Christians, Jews, Muslims or members of most other religions. Nonetheless,
based on the evidence before us, we can reasonably infer that certain religions impose a
dress requirement (Sikhism, for example), as do a few religious movements (Salafism,
for example), which make it a requirement of the faith. Certain individuals may also have
a sincere religious belief to that effect even if wearing a religious symbol at work is not
necessarily part of a formal requirement of the faith for their coreligionists.

[115] Thus, in light of the piecemeal evidence in the record, we can reasonably conclude,
for purposes of the appeal, that certain individuals will suffer what may be characterized
as serious and irreparable harm resulting from the requirement that police officers,
teachers, school principals and judicial personnel refrain from wearing religious symbols
while exercising their functions.

[116] This serious and irreparable harm, however, can only stem from the violation of
the freedom of conscience, religion, thought, belief, opinion or expression guaranteed
under section 2 of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”)
and section 3 of Quebec’s Charter of Human Rights and Freedoms (the “Quebec
Charter”). That said, Quebec’s National Assembly has declared that these provisions are
inoperative as regards the Act respecting the laicity of the State, by means of sections 33
and 34 of that statute. Indeed, section 33 states that the provisions of the Act “apply
despite sections 1 to 38 of the Charter of human rights and freedoms (chapter C-12)”,
while section 34 states that the provisions of the Act “have effect notwithstanding sections
2 and 7 to 15 of the Constitution Act, 1982”.

[117] In the latter case, the National Assembly has relied on section 33 of the Canadian
Charter, which allows the adoption of a provision that overrides sections 2 and 7 to 15 of
said Charter that set forth certain fundamental rights. The National Assembly has also
relied on section 52 of the Quebec Charter, which allows the adoption of a provision that
500-09-028470-193 PAGE: 30

derogates from sections 1 to 38 thereof that also set forth fundamental rights. The
appellants are not contesting the power to adopt such notwithstanding provisions or the
validity of their adoption.

[118] As the judge of first instance rightly pointed out, allegations of an infringement of
the freedom of conscience, religion, thought, belief, opinion or expression cannot be
considered allegations of serious and irreparable harm for purposes of an interlocutory
judgment seeking to suspend the effect of the Act, where the very reliance on the
notwithstanding provisions is not challenged. The harm caused by the use and effect of
the notwithstanding provision in section 33 of the Canadian Charter or in section 52 of the
Quebec Charter cannot be argued against those sections, because doing so would be
tantamount to denying their very existence by effectively rendering them inoperative.

[119] The appellants nevertheless contend that the notwithstanding provision in section
33 of the Constitution Act, 1982 does not apply, given their submission that the Act is ultra
vires because it falls under the exclusive federal criminal law power, it is overly vague and
thereby incompatible with the principle of the rule of law and it jeopardizes the very
structure of the Canadian constitutional order. As the judge of first instance also
concluded, the answers to these questions are not immediately apparent and are far from
obvious. These allegations alone cannot overcome the presumption of validity of the Act
for purposes of obtaining an immediate suspension thereof.

[120] The appellants, being aware of these major legal hurdles, now invoke section 28
of the Canadian Charter, which provides that the rights and freedoms referred to in said
Charter “are guaranteed equally to male and female persons”. The appellants contend
that, since section 33 of the Canadian Charter does not mention the power to override its
section 28, the notwithstanding provisions set out in section 34 of the Act respecting the
laicity of the State do not extend thereto, such that the Act can and must be suspended
because it treats women unequally as compared with men.

[121] The appellants argue that section 8 of the Act – which requires employees in the
public sector to exercise their functions with their face uncovered and also requires that
those seeking their services uncover their face if doing so is necessary to allow their
identity to be verified or for security reasons – unequally limits the right to freedom of
religion and the right to equality of Muslim women, when compared with the rights of men
of any other religion, because only Muslim women are liable to wear the full face veil.
This, according to them, is a violation of section 28 of the Canadian Charter.

[122] They also submit that section 6 of the Act – which prohibits police officers,
teachers, school principals and judicial personnel from wearing religious symbols in the
exercise of their functions – mainly affects elementary and high school teachers, who are
predominantly women. In their view, the Act disproportionately pertains to female
500-09-028470-193 PAGE: 31

teachers and therefore unlawfully limits their right to practice their religion and their right
to equality when compared with their male colleagues. As a result, they claim that the
prohibition set out in section 6 of the Act violates the right guaranteed in section 28 of the
Canadian Charter because it disproportionately limits the right of women to equality and
to freedom of religion.

[123] In short, the appellants are no longer debating the issue of religious symbols. They
are limiting the debate regarding section 28 to the Islamic headscarf and the full face veil.
They argue that wearing the Islamic headscarf or the full face veil is the result of an
autonomous and reasoned choice by the women who wear them. Prohibiting or regulating
them constitutes not only a strain on freedom of religion, but also a type of discrimination
against women, notwithstanding that the preamble to the Act states the importance
attached to equality between women and men.

[124] This approach is not obvious at first sight.

[125] Author Anastasia Vakulenko, in her work entitled Islamic Veiling in Legal
Discourse, Routledge, Oxon, 2012, provides a good description of the various legal
rationalizations pertaining to Islamic veiling, including arguments based on sexual
equality. She notes that rationalizations based on sexual equality and the emancipation
of women are put forth by legislatures, courts and authors to support both the prohibition
against Islamic veiling as well as the contrary position. She also notes that the
instrumentalization of Islamic veiling as a standard-bearer for the equality of women
poses certain problems, because, historically, the symbolism surrounding this veil has not
matched feminist ideals. Above all, she concludes that the conciliation of Islamic veiling
with the principle of sexual equality does not lend itself to simplistic analyses or boilerplate
answers.

[126] As an example of the complexity of the subject and the diverging discourses on
Islamic veiling from a sexual equality perspective, it is useful to refer to the remarks of
Lady Hale, now president of the Supreme Court of the United Kingdom, who cites an
article by an eminent professor involved in the elimination of discrimination against
women. While recognizing that a prohibition on Islamic veiling may infringe the right to
cultural and religious diversity, that author nevertheless states that: “[…] A mandatory
policy that rejects veiling in state educational institutions may provide a crucial opportunity
for girls to choose the feminist freedom of state education over the patriarchal dominance
of their families. Also, for the families, such a policy may send a clear message that the
benefits of state education are tied to the obligation to respect women’s and girls’ rights
to equality and freedom.”: R. (on the application of Gegum) v. Headteacher and
Governors of Denbigh High School, [2006] UKHL 15, para. 98, citing professor Frances
Radney, “Culture, Religion and Gender”, [2003] 1 International Journal of Constitutional
500-09-028470-193 PAGE: 32

Law 663. It therefore appears that the issue of sexual equality with respect to the Islamic
headscarf does not lead to straightforward or obvious answers.

[127] Be that as it may, the new arguments raised by the appellants based on section
28 of the Canadian Charter cannot be accepted at this stage of the judicial proceedings,
although, at the trial on the merits, these arguments may certainly be the object of
evidence and debate to determine their ultimate merit.

[128] Indeed, at this preliminary stage, we have but little evidence of the effect of section
6 of the Act on women by contrast with men. While we can certainly conclude that the
majority of teachers are women, we can also reasonably conclude that the majority of
police officers are men. We have no information on the number of women in Quebec for
whom wearing a religious symbol during work hours represents a sincere religious belief
in relation to the number of men who have the same sincere religious belief. At this stage
of the proceedings, the factual basis for the appellants’ claim with respect to section 28
of the Canadian Charter that section 6 of the Act pertains chiefly and first and foremost
to women seems somewhat thin.

[129] That being said, even if the evidence were to establish that the effect of sections
6 and 8 of the Act are felt primarily by Muslim women who wear the Islamic headscarf or
the full face veil, as the appellants contend, this would not necessarily lead to the
immediate suspension of these sections of the Act at this preliminary stage of the legal
proceedings. Here are the reasons why.

[130] Little has been written by the courts on the scope and effect of section 28 of the
Canadian Charter. As the British Columbia Court of Appeal noted in McIvor, the
jurisprudence treats section 28 primarily as an interpretative – rather than a prescriptive
– provision, one that does not confer rights that can be contravened: McIvor v. Canada
(Registrar, Indian and Northern Affairs), 2009 BCCA 153, para. 64.

[131] Consequently, although certain laws may predominantly affect members of one
sex over another, this does not necessarily mean that section 28 of the Canadian Charter
can be relied upon in order to invalidate them. For example, the rule requiring the wearing
of a safety helmet on construction sites – which pertains primarily to men given the
demographics of this industry – does not allow a man to refuse to wear the helmet on the
ground that the law chiefly affects men. Similarly, a turban-wearing man could not invoke
section 28 on the ground that wearing the helmet affects the freedom of religion of men
differently than that of women. In the latter case, there may be discrimination based on
religion, which could allow for reasonable accommodation, but it is doubtful that there is
also discrimination based on the unequal treatment of the right to religion of men
compared with women.
500-09-028470-193 PAGE: 33

[132] There may perhaps be situations in which a difference in the treatment of men and
women as a result of a legal rule would give rise to the application of section 28 of the
Canadian Charter, but, for this to be argued, there must be a sufficient evidential basis to
support such a claim.

[133] Furthermore, section 28 of the Canadian Charter has not, as of yet, been applied
in connection with a provision relying on the override power of section 33 of the Canadian
Charter. The interplay between these two sections is an issue the courts have not
addressed.

[134] The state of the law on section 28 is therefore much too nebulous and embryonic
to be able to claim, at this preliminary stage, that it is a provision that can clearly frustrate
the application of section 33 of the Canadian Charter and the notwithstanding provisions
of sections 33 and 34 of the Act respecting the laicity of the State so as to justify the
immediate suspension of sections 6 and 8 of this statute notwithstanding the presumption
of constitutionality that applies to these sections.

[135] But there is more. Even if we were to conclude that section 28 of the Canadian
Charter is a substantive provision that can thwart the notwithstanding provision of section
33 of the Canadian Charter, thereby allowing a court to suspend the effect of sections 6
and 8 of the Act respecting the laicity of the State, it would be necessary, before doing
so, to also conclude that these sections of the Act could not be reasonable limits on the
rights and freedoms guaranteed by the Canadian Charter. Section 1 of the Canadian
Charter provides that the rights and freedoms set out therein – which would probably
include section 28 if we adopt the appellants’ view that this is a provision of substantive
law – may be subject to “such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society”.

[136] That said, the rule set forth in section 8 of the Act, which requires individuals to
uncover their face when receiving a public service if doing so is necessary to allow their
identity to be verified or for security reasons, could very well be a reasonable limit
demonstrably justified in a free and democratic society: R. v. N.S., 2012 SCC 72, [2012]
3 S.C.R. 726; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2
S.C.R. 567. We need not decide the matter, but it is certainly arguable.

[137] Similarly, the obligation set out in section 8 of the Act, which requires functions
within the public sector to be exercised with the face uncovered, does not, at least at first
sight, appear to be an unreasonable provision in and of itself that could not be justified in
a free and democratic society. Indeed, there is a possibility that the judge hearing the
matter on the merits could conclude that it is reasonable for the State to direct that the
citizens it serves have the right to receive the public services they pay for via public
service employees working with their faces uncovered, without this rule necessarily being
a violation of the freedoms of religion and expression or, as the case may be, without it
500-09-028470-193 PAGE: 34

being unjustifiable in a free and democratic society. Once again, we need not decide the
matter, but this logic is, at the very least, tenable.

[138] Perhaps it will be necessary to distinguish between functions that involve contact
with the public and other public sector functions. However, these are specifics and
distinctions that may be made, if need be, once the matter is debated on the merits of the
case. At this preliminary stage, we need only note that the debate does not lend itself to
a clear answer that would, from the outset, rebut the presumption of validity of the Act.

[139] It does appear that the justification for section 6 of the Act under section 1 of the
Canadian Charter presents a greater challenge. As previously noted, this section requires
police officers, teachers, school principals and judicial personnel to refrain from wearing
religious symbols in the exercise of their functions. As will be noted below, however,
several free and democratic societies have enacted such measures. It would therefore
be imprudent to assume, at this preliminary stage of the proceedings, that section 6 of
the Act is destined to be declared unconstitutional in the uncertain event that section 28
of the Canadian Charter could be invoked against the notwithstanding provisions of the
Act and section 33 of the Canadian Charter.

[140] Indeed, legislative measures similar to those set out in section 6 of the Act have
been adopted and are in force in several free and democratic Western countries that have
liberal constitutions protecting human rights, including the freedoms of belief and religion.
France, Belgium, certain Swiss cantons and German länders and, in the past, Turkey, to
name but a few, have adopted laws or restrictive policies regarding the wearing of
religious symbols within the public sphere. In most of these cases, the courts, including
human rights tribunals, have upheld such provisions.

[141] According to the jurisprudence of France’s Conseil d’État, the principle of the
neutrality of public services justifies limitations on the display of religious beliefs by agents
of the French State in the exercise of their functions. Indeed, the Conseil d’État long ago
opined on the matter in the field of education: the display by a public service agent
performing functions in the field of education of his or her religious beliefs through a
religious symbol is a breach of the duty of neutrality that must apply in the French public
service. When this rule was brought before the European Court of Human Rights, it was
not set aside: Ebrahimiam v. France, no. 64846/11, November 26, 2015. The
Constitutional Court of Belgium also refused to invalidate a policy of the education council
banning the wearing of religious symbols by public school staff: Constitutional Court of
Belgium, no. 145/2012, December 6, 2012. The same is true in Switzerland: Dahlab v.
Switzerland, European Court of Human Rights, no. 42393/98, February 15, 2001.

[142] The European Court of Human Rights had numerous opportunities to consider the
issue and concluded that this type of legislation does not infringe the freedoms of thought,
conscience and religion set out in the European Convention on Human Rights: Case of
Ebrahimian v. France, no. 64846/11, November 26, 2015; Drogru v. France,
500-09-028470-193 PAGE: 35

no. 27058/05, December 4, 2008; Kurtulmus v. Turkey, no. 65500/01, January 24, 2006;
Layla Sahin v. Turkey, no. 44774/98, November 10, 2005; Dahlab v. Switzerland, no.
42393/98, February 15, 2001.

[143] It is particularly by invoking the right to the equality of women that the European
Court of Human Rights, in Dahlab v. Switzerland, confirmed the ban on Islamic
headscarves for teachers in the canton of Geneva, noting that this symbol has a
proselytizing effect that is inconsistent with a teacher’s role and seems to be imposed by
a religious requirement that is difficult to reconcile with the principle of sexual equality.

[144] Of course, there are significant differences between the constitutions of these
European countries and the Canadian Constitution, as well as between European values
and distinctly Canadian values. Given the particular characteristics of the Canadian
constitutional framework and Canada’s history, both of which have long recognized our
cultural and linguistic diversity, it may well be that Canadian courts will ultimately have
quite a different approach to these issues than the European Court of Human Rights or
European tribunals. The approach of the European Court of Human Rights may not be
the one that Canadian courts should adopt and its limited vision of Islamic veiling may
need to be nuanced, if not rejected.

[145] That being said, when questions arise, as here, about the relationship between the
State and religions, with respect to which deep differences of opinion can reasonably exist
in a free and democratic society, the courts should tread with care and circumspection,
given the diversity of approaches to these questions and the difficulty of arriving at a
uniform understanding of the meaning of religion in society. The role and impact of religion
in society, as well as the forms of public expression of religious convictions, differ
depending on time and context. They vary based on shifting sociological and ideological
factors, national traditions and the requirements imposed by the protection of the rights
and freedoms of others and the preservation of public order in a given society. Moreover,
the concept of religious symbolism and its place in the public sphere are viewed differently
by every society; the Act respecting the laicity of the State is a striking example of this in
Canada.

[146] The Court must therefore recognize that many of the issues pertaining to the
wearing of religious symbols by Quebec police officers, teachers, school principals and
judicial personnel – including the issues of law that arise – are complex and do not easily
lend themselves to summary analyses based on piecemeal evidence, as the appellants
are asking us to do in the case at bar.

[147] Therefore, it cannot reasonably be argued that the appellants are invoking a clear
and indisputable right when they refer to section 28 of the Canadian Charter in order to
discard the presumption of constitutionality of the Act respecting the laicity of the State
from the debate.
500-09-028470-193 PAGE: 36

[148] Consequently, at this stage of the legal proceedings, a suspension of sections 6

and 8 of the Act respecting the laicity of the State cannot be contemplated because, given
the presumption of constitutional validity, the Court must presume that the public interest
is served by keeping these provisions in force. As this Court indicated in Québec (Attorney
General) v. D’Amico, 2015 QCCA 2138, para. 28:

[28] It is useful to note that, within the context of provisional injunction

proceedings, the impugned provincial legislation benefits from what is commonly,
but erroneously, referred to as the presumption of constitutional validity. This
presumption is rather a rule of procedure whereby the onus of establishing that
legislation violates the Constitution lies with those who challenge it. By definition,
this rule is essentially directed to the merits of the case. It is therefore rare for the
constitutional validity of legislation to be determined within the framework of a
provisional or interlocutory proceeding, and courts will not lightly decide that a law
that Parliament or a provincial legislature has duly enacted for the public good is
inoperative before a complete constitutional review has been completed.

[Emphasis added; footnotes omitted]

[149] This principle is all the more applicable here, given that Quebec’s National
Assembly is invoking the notwithstanding provision set out in section 33 of the Canadian
Charter, through which it can shield the Act from judicial scrutiny under sections 2 and 7
to 15 of said Charter. The National Assembly is also invoking the notwithstanding
provision in section 52 of the Quebec Charter. With all due respect for the contrary
opinion, 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.

[150] That being said, the use of the notwithstanding provision, whether pursuant to
section 33 of the Constitution Act, 1982 or section 52 of the Quebec Charter, is not a
trivial matter. It entails a suspension of citizens’ fundamental rights, hard-won rights that
guarantee the freedoms we cherish as a society and country. A derogation from
fundamental rights has serious and significant political and legal repercussions. One must
tread very carefully when invoking such extraordinary powers. The power to suspend
fundamental freedoms may possibly have its own limits in a free and democratic society.
We can conceive of extreme circumstances where the extraordinary power to suspend
fundamental freedoms could be constrained by equally extraordinary legal remedies. But
that is not where we are. Indeed, let us hope we never reach that point.

[151] This is not a matter of endorsing the Act respecting the laicity of the State, nor
should the dismissal of the appeal be confused with any opinion on the part of the Court
for or against this Act, which has inflamed passions on both sides. The opinion of the
judge as a citizen does not form part of the legal debate. Rather, the exercise here
consists in adjudicating whether or not to suspend the Act based on the applicable legal
framework.
500-09-028470-193 PAGE: 37

[152] It will be up to the judge on the merits of the case to adjudicate the numerous legal
and constitutional issues the Act raises, in light of the evidence and arguments submitted
after a full judicial debate. In the meantime, the Act must be presumed constitutionally
valid.

[153] The matter of constitutional exemptions was also raised within the scope of the
appeal, but was not discussed much at the hearing. It is appropriate to write a few words
on this subject.

[154] As Beetz, J., stated in Metropolitan Stores, pp. 147-148, the public interest that
underlies the presumption of validity of a statute carries less weight in matters involving
an application for a constitutional exemption in a particular case than when seeking a
suspension of the statute with a more general effect. However, as Beetz, J., also indicated
in Metropolitan Stores, p. 146, the possibility of a constitutional exemption in a given case
cannot become an indirect way to suspend the effect of a statute by means of “a cascade
of stays and exemptions, the sum of which make them tantamount to a suspension case”.

[155] It is also worth noting that the criteria for obtaining a constitutional exemption have
been tightened in recent years: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, paras.
70-73; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, para. 91. These exemptions are
used chiefly as interim measures in addition to a declaration of constitutional invalidity:
Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13. While the door is
not fully closed to temporary constitutional exemptions in specific cases where the
circumstances lend themselves to such a remedy, it is a measure that courts must
approach with caution. There is no need, within the scope of this appeal, to say more
regarding constitutional exemptions.

[156] For these reasons, I propose that the Court dismiss the appeal, but without legal
costs.

ROBERT M. MAINVILLE, J.A.