Bill 21 Hearing Report:
Court of Appeal hears the constitutional challenge to Quebec’s secularism law (“la Loi sur la laïcité de l’État”)
By Vivian Clemence*
[Consultez la version Française ici]
On November 7 to 10 and 16, 2022, the Quebec Court of Appeal heard the constitutional challenge to the province’s law on secularism (“laïcité”), Bill 21. As previously reported, Christian Legal Fellowship (“l’Alliance des chrétiens en droit”) was granted leave to intervene in the litigation. In March 2022, CLF filed its factum with the Court of Appeal, and in November 2022, CLF filed its Outline (“Plan de plaidoirie”), available here:
Spanning five days, the hearing proceeded with submissions from the four appellants, the respondent (the Attorney General of Quebec) and seven intervenors on ten themes set out by the panel of three judges (hereinafter, the Court).[1]
On appeal before the Court was the April 2021 decision of Justice Blanchard of the Quebec Superior Court. Justice Blanchard concluded that the notwithstanding clause shielded much of Bill 21 from Charter scrutiny, and largely upheld the law on that basis (with some exceptions). However, he expressed some deep reservations about the legislation. Click here for CLF’s analysis of Justice Blanchard’s Bill 21 ruling.
The aim of this report is to provide a high-level, non-exhaustive overview of some of the main arguments presented to the Court as they relate to freedom of religion in Canada. It is not intended to provide an official record or transcript of the proceedings.[2] Besides the themes explored below, the Court heard a number of other Charter and constitutional claims, including those related to minority language rights under s. 23 of the Canadian Charter; the right to be qualified for provincial elections under s. 3 of the Canadian Charter (including the issue of parliamentary privilege); and Canada’s constitutional architecture and unwritten constitutional principles.
The Scope of the Charter’s Notwithstanding Clause
In enacting Bill 21, the Quebec government invoked the notwithstanding clauses of both the Canadian (s. 33) and Quebec (s. 52) charters, which allow a law to operate “notwithstanding” the fact that it potentially violates certain Charter rights, including religious freedom and the right to equality without discrimination on the basis of religion.
Parties opposed to Bill 21 submitted that a law must always have a legitimate purpose in order for the government to invoke the notwithstanding clause, and the use thereof must always be subject to judicial review.
They argued that the lower court judge erred in applying the Supreme Court of Canada’s 1988 decision of Ford v Québec (Attorney General)[3] (Ford) to hold that rights under ss 2 and 7 to 15 of the Charter can be “put on hold” (unofficial translation) on the sole condition that the use of the notwithstanding clause be “expressly declare[d].”[4] The lower court concluded that, in cases where s. 33 is invoked, the judiciary’s role is limited to determining whether this formal condition has been met.
The appellants submitted that Ford does not support the conclusion that a court could never deem invalid the use of the notwithstanding clause. To conclude otherwise, as the lower court did, would be to compromise the Superior Court’s authority under s. 96 of the Constitution Act, 1867 to “[…] review exercises of public power for legality and to ensure that citizens are protected from arbitrary government action” (emphasis added).[5]
The Court later put this question to the Attorney General, asking, if s. 33 states purely formal requirements for invocation, does this not then put into question its constitutionality vis-à-vis s. 96? The Attorney General replied that the wording of the notwithstanding clause is ‘inescapable.’
Parties opposed to Bill 21 argued that this rendering of the notwithstanding clause’s scope—that a court may never scrutinize the objective of a law where s. 33 is invoked—creates a glaring inconsistency in the Charter, where individuals have fundamental rights on paper but the State can usurp them whenever and however it chooses, immune from judicial scrutiny, on the basis of s. 33. In fact, it would allow the legislator to invoke s. 33 to adopt a law with the plain objective of revoking fundamental rights. They argued that this is what Bill 21 effectively does, and to uphold it on the basis of s. 33 is to neutralize the rule of law.
They asked the Court to interpret Bill 21 in light of the Charter[6] to find that its purpose is to revoke fundamental rights by legislating the complete withdrawal of religion from the public sphere, which is unacceptable in a free and democratic society.
The Mouvement laïque québécois (MLQ) later submitted there is no constitutional right to practice one’s religion in the execution of one’s work duties in the public sector.
Counsel for the Attorney General argued that the lower court’s application of Ford is the only one possible, and the principle of stare decisis binds the Court to follow Ford as the lower court did. They submitted the intent of section 33 is to give the “last word” to the legislator.
Fundamental Rights ViolationS & the Judiciary’s Role when s. 33 is Invoked
The appellants argued that regardless of the Court’s conclusion on the above, the judiciary ought to always adjudicate whether a Charter right has been violated and, if so, issue a declaratory remedy.
They cited Supreme Court case law for the principle that, although courts may not invalidate a law by operation of the notwithstanding clause, it does not necessarily follow that they are excused from considering claims based upon the rights specified.[7] The Supreme Court has also said that if people cannot have their rights adjudicated, the rule of law becomes non-existent.[8]
The Court asked whether it is really necessary to adjudicate rights where the impugned law will continue to operate anyway by virtue of s. 33. Counsel answered that to refuse to adjudicate these rights is to deny the rights-holders access to the courts—guardians of the rule of law—and that all are entitled to know the effects of this law on fundamental rights.[9]
The Court questioned whether it could be said that Ford allows a legislature to rely on s. 33 as if the relevant Charter rights did not exist. Counsel replied that, on a plain reading, the notwithstanding clause’s goal is to ensure a law remains operable. There is no mention of the enumerated rights’ continued existence, nor of section 1 of the Charter. Section 33 in no way prevent the courts from determining a rights violation, nor does it relieve the legislator of its burden to justify rights violations. It just allows a law to continue to operate, for a fixed period, notwithstanding those violations.
On the other hand, the MLQ argued that the duty of state neutrality requires the Quebec government to enact rules for its intermediaries to follow, in order that neutrality be achieved through its representatives, citing Saguenay.[10] Counsel submitted that the duty of state neutrality “does not entail a reconciliation of rights” because state officials are “not entitled to use public powers to profess their beliefs”[11] and that, therefore, there is no need to turn to s. 1 for justification.
In fact, the Attorney General had tendered no evidence under s. 1 with regards to any of the Charter rights claims in this case.
The MLQ also addressed the lower court’s conclusion that, “by preventing the wearing of a religious symbol for people whose religious observance requires a certain orthopraxy, we find ourselves denying them one of the very foundations of their being” (unofficial translation).[12] The MLQ argued that the State cannot guarantee orthopraxy to public officials in the performance of their duties, their religious symbols being the “object of their beliefs”.[13] In the MLQ’s opinion, s. 2(a) is not activated in this case.[14]
The MLQ further argued that courts should avoid interpreting the content of a subjective belief.[15] The Court asked if this likewise prevents the legislature from addressing the matter, and the MLQ replied that the legislator enacted Bill 21 out of its duty of state neutrality.
On this matter, the appellants replied citing Saguenay to argue that state neutrality is required of institutions and the State, not individuals.[16] Further, they submitted that Saguenay was concerned with positive actions by state representatives which encouraged and/or pressured others to participate in a religious activity; this does not apply in the context of merely wearing a religious symbol.
Pre-Charter and Pre-Confederation Laws & Section 31 of the Charter
Parties opposed to Bill 21, including CLF, argued that there are certain constitutional limits on provincial legislative authority over religious freedom based on certain pre-Charter laws such as the Quebec Act of 1774, the Hart Act (1832) and the Act of 1852.
The Attorney General argued that these are ordinary provincial laws with no supra-legislative status, as the lower court judge concluded.[17] They contended that it would be inconsistent to hold otherwise where the Constitution’s drafters (1) have not clearly incorporated these laws into the definition of our constitution under s. 52 of the Constitution Act, 1982; and (2) have intentionally incorporated into our Constitution a charter which grants the right to freedom of religion, subject to override under s. 33.
Parties opposed to Bill 21 contended that these laws recognize and guarantee the equality of all people to freely exercise their religion. They submitted that these laws form part of the Canadian Constitution—highlighting the fact that s. 52 is not an exhaustive list of constitutional documents[18]—and they remain in force to this day. Therefore, certain aspects[19] of religious freedom cannot be extinguished by an ordinary provincial law, nor by the use of the Charter’s notwithstanding clause, today.
The Court asked whether s. 2(a) of the Charter supplants the constitutional guarantee of freedom of religion as it exists in these pre-Charter laws (note: this is an issue that CLF actually addressed at the outset of its factum at paras 3–5[20]).
The Court also asked whether the appellants’ arguments flout the apparent intent, under the Charter, to allow legislatures to override s. 2(a) (religious freedom) by invoking s. 33. Counsel for the appellants and the World Sikh Organization urged the Court against framing the Charter as the sole instrument of protection of rights and freedoms in Canada.[21] They contended that the Charter cannot be taken to displace these other laws without clear language to that effect, and it therefore remains that they exist in parallel with the Charter and are not extinguished by any part thereof.
The Court also asked how it ought to interpret s. 26 of the Charter, which reads: “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada” (emphasis added). They asked whether the word “other” refers only to rights and freedoms of a different nature, or rather to rights and freedoms from a different source. Counsel submitted the Court ought to favour the latter interpretation.
CLF was asked to make oral submissions to the Court on s. 31 of the Charter, which states: “Nothing in this Charter extends the legislative powers of any body or authority.” See CLF’s Outline (“Plan de plaidoirie”) above.
CLF litigation counsel, Robert Reynolds (left) and CLF’s executive director, Derek Ross (right) at the Bill 21 hearing.
Montreal lawyer Robert Reynolds represented CLF in this appeal, and he explained in his oral submissions that section 31 is relevant to this case in two ways:
1. First, the text of section 31 clearly applies to all sections of the Charter, including section 33, and limits their application.
2. Second, no government can invoke the Charter to expand its legislative power beyond what it was prior to the Charter; neither to override the division of powers between federal and provincial governments, granted by sections 91 and 92 of the Constitution Act, 1867, nor to enact legislation that it lacked authority to pass before the Charter was introduced.
On the first point, CLF submitted that s. 31’s wording is clear and unambiguous, both on a plain reading and on a contextual reading. The Supreme Court has said the goal of the Charter is to limit, not expand, legislative power,[22] and that the Charter “is not in itself an authorization for governmental action.”[23]
On the second point, CLF submitted that Bill 21 would have been unconstitutional in 1982, and therefore it remains so today by virtue of section 31. In particular, two constitutional limits existed prior to the Charter’s enactment: (1) provinces did not have the power to legislate for purely religious purposes; and (2) across Canada, faith groups had the constitutional right to freely exercise their religion.
On the first constitutional limit, CLF explained that one of the purposes of s. 31, as recognized by the Supreme Court, is to preserve the division of powers.[24] Bill 21 has a purely religious purpose, as the lower court judge rightfully concluded.[25] And according to the Supreme Court, such questions fall squarely within federal, not provincial, jurisdiction.[26]
CLF added that Bill 21 clearly infringes the freedom of certain religious minorities to exercise their religion in Quebec, which was recognized even before the Charter as a “constitutional right of all of the inhabitants of this country” and a matter of national concern.[27] CLF submitted this cannot be a matter of a purely local or private nature, highlighting the Supreme Court’s pre-Charter statements that (1) all religions are on an equal footing in Canada[28] and (2) freedom of religion “should be included among those upon which the Parliament of Canada might legislate for the preservation of peace, order and good government” (emphasis added).[29]
On the second constitutional limit, CLF contended that Bill 21 exceeds provincial jurisdiction established prior to the Charter. More specifically, the Act of 1852 recognizes the right to “free exercise and enjoyment of religious profession and worship, without discrimination or preference” as a “fundamental principle of our civil polity”.[30] This statement of freedom of religion was recognized by the Supreme Court as a “fundamental principle of the constitution of the entire country.”[31] CLF submitted to the Court that this principle (religious freedom and religious equality) enjoyed constitutional protection prior to the Charter and is beyond the legislative authority of Quebec.[32] Bill 21 not only violates this principle, but constitutes an unwarranted extension of Quebec’s legislative authority, which s. 33 cannot justify by virtue of s. 31.
The Court asked CLF what section 31 adds to the debate on the division of powers. Reynolds replied that section 31 requires us to look at the division of powers on freedom of religion as it was prior to the Charter: religious freedom being recognized by the Supreme Court in Saumur as a constitutional principle and a matter falling under exclusively federal jurisdiction. Now, post-Charter, the province of Quebec has enacted a law which it did not have the power to pass prior to 1982 and, Reynolds submitted, would have been declared unconstitutional like the by-law in Saumur. Nothing in the Charter can be used to alter this conclusion, pursuant to s. 31.
Division of Powers
The appellants submitted to the Court that Bill 21 is an attempt to legislate over criminal law (s. 91(27)), which is “one of the classes of subjects reserved to the exclusive authority of Parliament, because it is directed towards the maintenance of public order and public morals.”[33]
The Attorney General contended that any effect Bill 21 has on morality is incidental to its purportedly dominant and intra vires purpose of achieving secularism in Quebec. The appellants retorted that, according to the Supreme Court, provincial laws may affect morality only when “firmly anchored”[34] in an independent provincial head of power, that being the “dominant purpose”[35] of the legislation, which is not the case here. They submitted Bill 21’s dominant purpose is to regulate public morality. The appellants added that if this law is not criminal, it must fall under the federal authority to legislate for peace, order, and good government (POGG) (s. 91), given that it does not fall under any other provincial heads of power.
In response, the Attorney General invoked s. 92(13) (property and civil rights), alleging Bill 21 legislates over labour relations. However, the appellants submitted that a province’s relationship with public employees falls outside of “property and civil rights”.[36]
Next, the Attorney General invoked s. 92(16) (matters of a merely local or private nature). The appellants, like CLF, contended that religious freedom is clearly a matter of national importance, being recognized by the Supreme Court “as of the greatest constitutional significance throughout the Dominion”.[37] They submitted that individual practice of religion cannot be implemented by provinces, otherwise the province in Saumur could have simply banned the practice of the religion of Jehovah’s Witnesses. Saumur rejected this notion.
Thirdly, the Attorney General raised s. 92(4) (establishment, tenure, appointment and payment of public officers). The appellants submitted that this section is about responsible government,[38] and prohibiting religious symbols has no relation thereto.
Fourthly, the Attorney General raised s. 45 of the Constitution Act, 1982. The appellants submitted that the Supreme Court has explained s. 45 allows provinces “to unilaterally amend certain aspects of the Constitution that relate to their own level of government, but which do not engage the interests of the other level of government.”[39] The appellants contended that religious freedom is “entrenched as being indivisibly related to […] a fundamental term or condition of the union.” [40]
Finally, the Attorney General invoked s. 93A of the Constitution Act, 1867. The appellants submitted that this section has nothing to do with the operation of an organ of government.
Women’s Equal Right to Practice their Religion
Parties opposed to Bill 21 submitted to the Court that the ban on religious symbols in Bill 21[41] violates women’s equal right to practice their religion pursuant to s. 28 of the Charter.[42] They submitted that, while s. 33 may apply to s. 2(a) (freedom of religion) and s. 15 (equality before and under law and equal protection and benefit of law), s. 28 exists to prevent the State from violating these rights in a way that prejudices one sex more than the other.[43] They highlighted the lower court’s finding that one of the purposes of Bill 21 is the removal of the hijab, worn by Muslim women.[44] As for the effects of Bill 21, they highlighted evidence that Muslim women have faced increased prejudice and stigma, including the evidence that every person who has lost employment as a result of Bill 21, to date, has been a Muslim woman.[45]
The Attorney General replied that s. 28 does not confer rights as its role is merely interpretational and, therefore, it cannot give rise to a remedy.[46] On this point, the opposition highlighted the Supreme Court’s 1994 decision, Native Women’s Assn of Canada v Canada, where the lower court had declared a rights violation under s. 28 (and the Supreme Court reversed this finding based only on a lack of evidence).[47] Further, they argued, the notwithstanding clause does not “suppress” rights – it simply allows legislation to continue to operate. In most cases, that may be the end of the analysis, but strictly speaking, the rights in question continue to exist. And where the notwithstanding clause denies the right to equal exercise of religion between the sexes, s. 28 is engaged.
Conclusion
CLF awaits the Court of Appeal’s decision, which is expected in 2023. CLF will continue to seek opportunities to uphold the fundamental value of freedom of religion and religious equality across Canada. As CLF argued in its factum:
“Bill 21 does not incidentally interfere with religion in pursuit of some other legitimate objective. It regulates religion for the sole purpose of erasing it, at least in certain public places. A legislative objective that can only be achieved by denying citizens their fundamental religious and equality rights is not a legitimate objective. Free religious expression was recognized as an integral component of Canadian society long before the Charter.”
To learn more about CLF’s advocacy and public engagement on Bill 21, please visit https://www.christianlegalfellowship.org/bill21.
*Associate Legal Counsel/Conseillère juridique associée, Christian Legal Fellowship/L’Alliance des chrétiens en droit. Special thanks to Bob Reynolds, Montreal lawyer and former CLF President, for his invaluable contributions to this intervention, and for representing CLF before the Quebec Court of Appeal in this matter.
[1] The ten themes as set out by the panel of judges were: (1) Notwithstanding clauses; (2) Fundamental rights; (3) Section 28 of the Canadian Charter (equality of rights guarantees for both sexes); (4) Minority language rights (s. 23 of the Canadian Charter); (5) Right to be qualified for provincial elections (s. 3 of the Canadian Charter); (6) Requests for damages/individual appellants; (7) Pre-confederation and pre-Charter laws; (8) Constitutional architecture/unwritten constitutional principles; (9) Division of powers; (10) Enumeration exercise for religious symbols.
[2] The contents of this report are provided for general information purposes only and are not intended to be relied upon for legal advice. Christian Legal Fellowship shall not be liable for any errors or omissions in the content of this report or for any actions taken or not taken in reliance upon the content herein.
[3] [1988] 2 SCR 712 [Ford SCR].
[4] See Hak c Procureure générale du Québec, 2019 QCCS 2989 at paras 44–45 [Hak QCCS], citing Ford c Québec (Procureur général), [1988] 2 RCS 712, supra note 3, at para 32 [Ford RCS]. See Ford SCR at para 33: “Section 33 lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case. The requirement of an apparent link or relationship between the overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review. It appears to require that the legislature identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights or freedoms. That would seem to require a prima facie justification of the decision to exercise the override authority rather than merely a certain formal expression of it. There is, however, no warrant in the terms of s. 33 for such a requirement. […].”
[5] Reference re Code of Civil Procedure (Que), art 35, 2021 SCC 27 at para 51: “réviser l’exercice des pouvoirs publics afin de s’assurer que cet exercice soit conforme à la loi et que les citoyens soient protégés contre l’arbitraire de l’état.”
[6] Henri Brun, Guy Tremblay and Eugénie Brouillet, Droit constitutionnel, 6th ed, Cowansville, Yvon Blais, 2014, at p 969 (other parts of this work were cited by the Attorney General): “XII-2.18 – La dérogation expresse a pour conséquence certaine d’empêcher les tribunaux de juger la loi inconstitutionnelle en raison de la Charte. Il est plus difficile, cependant, de savoir si elle empêche les tribunaux d’interpréter la loi en tenant compte de la Charte. […]” (emphasis added).
[7] See Gosselin v Québec (Attorney General), 2002 SCC 84 at para 95 (McLachlin, CJ, speaking on s. 52 of the Quebec Charter).
[8] See Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 40: “In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect. And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed: Christie v. British Columbia (Attorney General), 2005 BCCA 631, 262 D.L.R. (4th) 51, at paras. 68-9, per Newbury J.A.”
[9] This was later addressed by L’Alliance de la Fonction Publique du Canada (an intervenor) as well. See Hak QCCS, supra note 4 at paras 775–76.
[10] Citing Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at paras 76, 78, 80 [Saguenay].
[11] Ibid at para 119: “I repeat that what is at issue here is the state’s adherence, through its officials acting in the performance of their functions, to a religious belief. The state, I should point out, does not have a freedom to believe or to manifest a belief; compliance with its duty of neutrality does not entail a reconciliation of rights. On the other hand, it goes without saying that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity. Although they are not entitled to use public powers to profess their beliefs, this does not affect their right to exercise this freedom on a personal basis.”
[12] See Hak QCCS, supra note 4 at para 1098.
[13] Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 71: “[t]he state’s duty under s. 2(a) [freedom of religion] is not to protect the object of beliefs.”
[14] Ibid at para 61: “The first step where a claim is made that a law or governmental act violates freedom of religion is to determine whether the claim falls within the scope of s. 2(a). If not, there is no need to consider whether the decision represents a proportionate balance between freedom of religion and other considerations: Amselem, at para. 181.”
[15] See Ktunaxa, supra note 13 at para 72, citing Syndicat Northcrest v Amselem, 2004 SCC 47 at para 50: “The extension of s. 2(a) proposed by the Ktunaxa would put deeply held personal beliefs under judicial scrutiny. Adjudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs. In Amselem, this Court chose to protect any sincerely held belief rather than examining the specific merits of religious beliefs: ‘In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.’ (para. 50, per Iacobucci J.) The Court in Amselem concluded that such an inquiry into profoundly personal beliefs would be inconsistent with the principles underlying freedom of religion (para. 49).”
[16] Saguenay, supra note 10 at para 74.
[17] See Hak QCCS, supra note 4 at paras 475–584.
[18] See Reference re Senate Reform, 2014 SCC 32 at para 24: “Section 52 does not provide an exhaustive definition of the content of the Constitution of Canada: Supreme Court Act Reference, at paras. 97-100; Secession Reference, at para. 32.”
[19] CLF argues in its factum that the Quebec Act of 1774 and the Act of 1852 collectively reflect and codify fundamental legal principles that existed prior to the Charter. Specifically, these fundamental legal principles were: (1) the equality of religious denominations in the eyes of the law, (2) the original freedom of all people to be free from coerced religious profession, and (3) the absence of an established state religion. These principles persist to this day and, at a minimum, continue to prevent a provincial government from imposing sectarian observances as a condition of participation in public service.
[20] “Prior to the Charter, the Supreme Court of Canada and other courts recognized certain limits on legislative authority in matters of religion, stemming both from respect for fundamental and intrinsic rights and from the necessary implications of Canada's constitutional text and structure. While sections 2 and 15 of the Charter also affirm these principles, they are neither their sole nor exhaustive sources. Constitutional protections often overlap; they are not “insular and discrete”. Thus, while section 33 may be invoked to suspend one layer of constitutional protection (i.e., that afforded by sections 2 and 15 of the Charter), it does not follow that section 33 can suspend all constitutional protections related to the same subject matter. In fact, section 31 states the opposite and ensures that pre-1982 constitutional limits are not subject to section 33, even if they overlap with Charter protections that are.
As discussed below, one of these pre-existing limitations concerned the legal equality of faith communities to freely exercise their religion throughout the Dominion of Canada, which necessarily implies the absence of forced observance of a majority religion. Another limitation is that the provinces lack jurisdiction to regulate religion for solely religious purposes (or, in this case, for irreligious purposes). Finally, under our Constitution, Canada does not have an established national religion (or irreligion), and the constitutional text does not give provincial or federal governments the power to unilaterally create one.” (Citations omitted. Emphasis added in bold; underlining in original).
[21] See Constitution Act, 1867, 30 & 31 Vict, c 3, Preamble: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom […]” (emphasis added).
[22] See McKinney v University of Guelph, [1990] 3 SCR 229 at 261 (per La Forest J).
[23] Hunter v Southam Inc, [1984] 2 SCR 145 at 156 (per Dickson J for the Court).
[24] R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 306 (per Dickson J, for the majority) [Big M], citing R v Big M Drug Mart Ltd, 1983 ABCA 268 at para 10 (per Laycraft J, for the majority): “the Charter did not intend to effect a redistribution of legislative powers in Canada. Indeed, s. 31 of the Charter expressly so provides”.
[25] Hak QCCS, supra note 4 at para 367: “Il ne fait aucun doute que l’objet de la Loi 21 vise un objet religieux, en l’occurrence non seulement l’effacement dans un certain espace public de la religion, mais également, entre autres, l’interdiction dans certaines situations pour l’État de contracter avec un juriste qui porte un signe religieux”.
[26] Saumur v City of Quebec, [1953] 2 SCR 299 at 329 [Saumur]: “…the dimensions of this (religious) interest are nationwide; […] it appertains to a boundless field of ideas, beliefs, and faiths with the deepest roots and loyalties; a religious incident reverberates from one end of the country to the other […]”. Big M also concluded that a law having a religious purpose is within federal, not provincial, competence, because “it is directed towards the maintenance of public order and public morals” (supra, note 24 at 354).
[27] Saumur, supra note 26 at 371 (per Locke J) and 346 (per Kellock J).
[28] Chaput v Romain, [1955] SCR 834 at 840: “Dans notre pays, il n'existe pas de religion d'Etat. Personne n'est tenu d'adhérer à une croyance quelconque. Toutes les religions sont sur un pied d'égalité, et tous les catholiques comme d'ailleurs tous les protestants, les juifs, ou les autres adhérents des diverses dénominations religieuses, ont la plus entière liberté de penser comme ils le désirent. La conscience de chacun est une affaire personnelle, et l'affaire de nul autre. Il serait désolant de penser qu'une majorité puisse imposer ses vues religieuses à une minorité” (emphasis added).
[29] Saumur, supra note 26 at 359. This passage was cited by a majority of the Supreme Court of Canada in Scowby v Glendinning, [1986] 2 SCR 226 at paras 6, 8, for the principle that “a province has no jurisdiction to infringe a human right or liberty where the legislative provision is properly seen as falling under an exclusively federal head of power […]”.
[30] The Law of 1852 provides: “Whereas the recognition of legal equality amongst all Religious Denominations is an admitted principle of Colonial Legislation: And whereas in the state and condition of this Province, to which such a principle is peculiarly applicable, it is desirable that the same should receive the sanction of direct Legislative Authority recognizing and declaring the same as a fundamental principle of our civil polity: Be it therefore declared and enacted […] That the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference, so as the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the Province, is by constitution and laws of this Province allowed to all Her Majesty’s subjects within the same.” [emphasis added].
[31] Saumur, supra note 26 at 345–46: “It would therefore appear plain from all this legislation that, commencing with the statute of 1774, the phrase "property and civil rights" did not include the right to the exercise and enjoyment of religious profession, that being a matter the subject of special provision in each case, and, by the statute of 1852, made a fundamental principle of the constitution of the entire country” [emphasis added].
[32] CLF’s Outline (“Plan de plaidoirie”) cited Ontario (Attorney General) v Canada Temperance Federation, [1946] 2 DLR 1 at 5 (PC UK): “the true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole […] then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada.”
[33] Big M, supra note 24 at 354.
[34] R v Morgentaler, [1993] 3 SCR 463 at 504: “Although there has been some recognition of a provincial ‘morality’ power, it is clear that the exercise of such a power must be firmly anchored in an independent provincial head of power: Rio Hotel Ltd. v. New Brunswick, supra, at pp. 71-80; Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770; R. Pepin, ‘Le pouvoir des provinces canadiennes de légiférer sur la moralité publique’ (1988), 19 R.G.D. 865; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 364.” See also Nova Scotia Board of Censors v McNeil, [1978] 2 SCR 662 at 683, 84 DLR (3d) 1.
[35] See Siemens v Manitoba (Attorney General), 2003 SCC 3 at paras 29–32, citing Rio Hotel Ltd v New Brunswick (Liquor Licensing Board), [1987] 2 SCR 59. See also R v Morgentaler, supra note 34.
[36] Canadian Association of Fire Bomber Pilots et al v Saskatchewan et al, 1993 CanLII 6710 (SK QB).
[37] Saumur, supra note 26 at 356; See also Big M, supra note 24.
[38] Referring to Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2 [OPSEU] .
[39] Reference re Senate Reform, 2014 SCC 32 at para 48.
[40] See OPSEU, supra note 38 at 40 (per Beetz J).
[41] Section 6 of Bill 21 states: “The persons listed in Schedule II are prohibited from wearing religious symbols in the exercise of their functions. A religious symbol, within the meaning of this section, is any object, including clothing, a symbol, jewellery, an adornment, an accessory or headwear, that (1) is worn in connection with a religious conviction or belief; or (2) is reasonably considered as referring to a religious affiliation.” Section 8 of Bill 21 states: “Personnel members of a body must exercise their functions with their face uncovered. Similarly, persons who present themselves to receive a service from a personnel member of a body must have their face uncovered where doing so is necessary to allow their identity to be verified or for security reasons. Persons who fail to comply with that obligation may not receive the service requested, where applicable. For the purposes of the second paragraph, persons are deemed to be presenting themselves to receive a service when they are interacting or communicating with a personnel member of a body in the exercise of the personnel member’s functions.”
[42] Section 28 of the Canadian Charter states: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”
[43] The parties opposed to Bill 21 on this matter cited legislative debates in support of this argument. The Attorney General criticized their reliance upon debates and argued that their relevance is minimal.
[44] See Hak QCCS, supra note 4 at para 803: “De plus, il ne fait aucun doute que le principe d’interdiction du port d’un signe religieux découle du port de celui-ci par les femmes de confession musulmane. D’une part, avant la présence plus marquée de cette pratique dans l’espace public, on ne retrouve aucune préoccupation tangible à ce sujet dans le discours social. D’autre part, le port de signes religieux par les femmes musulmanes constitue une des causes de l’adoption de la Loi 21 notamment parce que certains les qualifient de symbole de soumission de la femme envers l’homme.”
[45] See Hak QCCS, supra note 4 at paras 801–807, 996.
[46] Citing New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46 at para 112.
[47] Native Women’s Assn of Canada v Canada, [1994] 3 SCR 627.