2019 QCCA 2145, 2019 QCCA 2145

Official English Translation of the Judgment of the Court Hak c. Procureure générale du Québec 2019 QCCA 2145 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) / ASSOCIATION 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.

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 REASONS OF THE CHIEF JUSTICE 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 State [1] (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 are prohibited from wearing religious symbols in the exercise of their functions. […] 8. 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 purpose 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. 6. Le port d’un signe religieux est interdit dans l’exercice de leurs fonctions aux personnes énumérées à l’annexe II. […] 8. Un membre du personnel d’un organisme doit exercer ses fonctions à visage découvert.

De même, une personne qui se 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.

Pour l’application du deuxième alinéa, 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. [ 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 Charter , the rights and freedoms in it are guaranteed equally to male and female persons. 28. Indépendamment des autres dispositions de la présente charte, les droits et libertés qui y sont mentionnés 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 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 influe nce 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] [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 athand, the new issue raised by the Court cannot be resolved definitively at this stage of the proceedings. A hearing on the merits isrequired. Thus, the criteria outlined in Mian must be analyzed in light of the particular circumstances of applications for a provisionalstay. [31] In the present case, there are two possible

interpretations regarding the risk of an injustice. On the one hand, an appellate courtis 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 irreparableharm 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 theomitted ground may also be an indicator for the Court. Here, the new issue concerns the application of the Canadian Charter and thescope of fundamental rights—those it is possible to override with the notwithstanding clause—as well as the guarantee of gender equalityin

section 28, which may be immune to such a derogation. On the other hand, the exceptional nature of the application for a stay and thehigh threshold for intervention by the Court call for restraint.

In any event, the reasons of the Court of Appeal with respect to anapplication for a stay that is provisional in nature should not be interpreted as a decision on the merits, that is, one on the constitutionalityof the Act. [32] The idea of temporarily suspending a statute acknowledged as discriminatory towards individuals who would normally beshielded from such discrimination is easy to understand, as the very concept of fundamental rights implies that they must be immunefrom the influence of temporary majorities who would like to abrogate, if even for a limited time, the individual rights of members ofprotected minorities. [33] Viewed from this perspective, it is clear that the allegedly privileged right to gender equality guaranteed by

section 28 isrelevant to an analysis of the constitutionality of the Act, just as it is relevant to an analysis of a possible suspension of the Act, becausethe appellants submit that the facts in the record, including the new evidence, are sufficient to allow for a preliminary consideration ofthe issue. [34] First, according to the appellants, the wording of

section 28 of the Canadian Charter clearly indicates that

section 33 of saidCharter does not apply to it. They contend that this

interpretation is corroborated by the legislative history underlying the inclusion ofthis 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 practicetheir religion (s. 2(

a) of the Canadian Charter) and their right to equality (s. 15 of the Canadian Charter) in a discriminatory manner. Inaddition, 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 rightguaranteed 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 todetermine 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 alegislative provision. [38] To adjudicate the new issue in order to decide on the application for a stay, it is appropriate to consider whether the backgroundto the enactment of the two relevant 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 fora 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 CanadianCharter 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; itwas 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 thecharacter and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historicalorigins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with whichit is associated within the text of the Charter. The

interpretation should be, as the judgment in Southam emphasizes, a generous ratherthan a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’sprotection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that theCharter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v.

Skapinker, (SCC), [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. [ 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 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 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”. Thisfalls short of a requirement of the equal treatment of “male and female persons”, presumably because that objective is attained by thegeneral equality clause of s. 15. All that s. 28 seems to require is that the other provisions of the Charter be implemented withoutdiscrimination between the sexes. To the extent that the other provisions of the Charter would apply equally to male and female personsanyway, 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 viewthat

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 theCharter. As regards the rights in the Charter, gender-based discrimination is therefore prohibited, notwithstanding the other sections ofthe Charter. Thus,

section 33, which provides for the possibility to expressly override rights, could not apply to the gender-baseddiscrimination prohibited by subsection 15(1): Boudreau v. Lynch, (1985) (NS SC), 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 incases of gender-based discrimination: this would mean that any affirmative action in favour of women, or potentially men, would beimpossible. In our opinion,

section 1 and subsection 15(2) apply to gender-based discrimination just as they apply to the other types ofdiscrimination prohibited by subsection 15(1), notwithstanding the wording of

section 28, because they are essentially clauses aimed atexplaining the meaning of the right to equality set out in subsection 15(1), and not clauses aimed at allowing

section 15 to be overriddenor circumvented.

Section 28 makes gender equality ubiquitous, in the sense that it must be considered when interpreting the other rightsenshrined in the Charter. Such an acknowledgement of the value of equality between men and women does not, however, exempt thecourts 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 thatthere 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 thevast 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 amuch 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 bythe Act. At this stage of the proceedings, the evidence is sufficient to establish on a prima facie basis that the female teachers in questionsuffer 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 justcome 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] [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 froma violation of rights guaranteed by the Charters and covered by the override. In their view, a straightforward reading of sections 6 and 8of 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 ofwhom are Muslim women, were refused employment opportunities by Montreal school boards because they wear the hijab as a religioussymbol. Moreover, these women state that the effects of the Act are causing them immediate financial difficulties, as well as hugeuncertainty 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 Islamicheadscarf.

Since the evidence on this point is silent regarding the wearing of the niqab, I will limit myself to a consideration of

section 6of the Act. [61] To date, this evidence has not been contradicted. One must conclude therefrom that

section 6 of the Act seems to create adisproportionate and immediate limit on the right of women to equality and freedom of religion as compared with men, whether or notthey are Muslim, which is a potential infringement of s. 28 of the Canadian Charter. The urgency test has therefore been met, if indeedit 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 mustdemonstrate 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, itmust 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] [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 maybe granted. As stated by McLachlin J.A. (as she then was) for this court in British Columbia (Att’y-General) v.

Wale (1986) (BC CA), 9 B.C.L.R. (2d) 333, aff’d. (SCC), [1991] 1 S.C.R. 62, the three parts of the test are not intended to beseparate watertight compartments, but factors that “relate to each other”, such that “strength on one part of the test ought to be permittedto 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 ofassessing 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 thatsection 28 possibly raises. I have already addressed this mater by looking at the wording and history of this section.

Moreover, the judgeof first instance acknowledged the seriousness of the appearance of right of the other grounds raised by the appellants and his analysiswas 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 arefusal 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] [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 ofproof, because the exercise is necessarily forward-looking and, as the Saskatchewan Court of Appeal noted, it “involves, and mustinvolve, a weighing of risks rather than a weighing of certainties” (Mosaic Potash, at paragraph 58). In that exercise, one must take intoaccount “both the likelihood of the harm occurring and its size or significance” (ibid, at paragraph 59). In reviewing assertions ofirreparable harm, this Court has often used strong language that may be thought to amount to a requirement of certainty.

However, suchlanguage is mainly used to impress on applicants the need to provide evidence that goes beyond mere speculation or hypotheses aboutfuture harm, in cases that fall well short of the mark.

In a recent case, Justice David Stratas of the Federal Court of Appeal provides auseful review of the jurisprudence and summarizes the applicable test as follows: “The burden on a moving party seeking a stay is toadduce specific, particularized evidence establishing a likelihood of irreparable harm” (Canada (Attorney General) v Oshkosh DefenseCanada 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 ofirreparable harm for several women, particularly when they point to the decision in Wallace v.

United Grain Growers Ltd., in which theSupreme 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 ofemployment 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, asimportantly, a contributory role in society.

A person’s employment is an essential component of his or her sense of identity, self-worthand emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendiumof psychological, emotional and physical elements of a person’s dignity and self-respect. In exploring the personal meaning ofemployment, Professor David M. Beatty, in his

article “Labour is Not a Commodity”, in Studies in Contract Law (1980), has described itas 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 providingrecognition of the individual’s being engaged in something worthwhile. It gives the individual a sense of significance. By realizing ourcapabilities and contributing in ways society determines to be useful, employment comes to represent the means by which most membersof 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 theapplication 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 ofinvalidity 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 withoutabusing 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 forceand 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 ofpower that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), (ON SC), 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 istrue that, as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with 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 theAct 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. Theyallege various types of harm:[51] financial problems, psychological problems, humiliation, obstacles to pursuing the career of theirchoice, and obstacles to advancing in their careers because they cannot exercise another function within the same school board or changeto 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 orfuture teachers, all of whom are women, who aspired to a career in teaching. The harm will continue to exist for the others who will haveto 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, thatthe stay will cause irreparable harm to the public interest.[53] In the present case, the respondent has not raised any argument other thanthe 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 astatute incorporating the override in

section 33 of the Canadian Charter, that is, a case in which the fundamental rights of severalindividuals 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 andirreparable harm. [75] The question therefore is whether, because the legislature has used a notwithstanding clause—whose application in the case atbar may be doubtful—the courts must refuse to suspend the Act even though several persons have submitted serious questions regardingthe 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 ofconvenience and the public interest. [77] Furthermore, as the Supreme Court noted in RJR-MacDonald, the Canadian Charter imposes a responsibility on the courts tosafeguard fundamental rights: On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights.

For the courts to insistrigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances beto condone the most blatant violation of Charter rights.

Such a practice would undermine the spirit and purpose of the Charter and mightencourage 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 thanthe 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 allowsfemale teachers who wore a religious symbol on March 27, 2019 to continue to do so as long as they exercise the same function withinthe same school board.[55] There is therefore no urgent harm to be eradicated; otherwise, such a transitional measure would not havebeen 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, thoughtthat grandfathering the rights of those already in their positions — who will continue to teach while wearing religious symbols — doesnot harm the public interest, a temporary stay of a single provision of the Act, liable to allow a few more individuals to teach whilewearing the hijab, would not, in my humble opinion, harm the public interest.

[ 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. REASONS OF BÉLANGER, 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]o twithstanding 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 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, statethat the Act is unconstitutional. The Attorney General is also correct in submitting that it is not clear that

section 28 of the Charterprecludes 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 thenotwithstanding clause to adopt legislation that violates equality between the sexes. It would also have to be just a clear that the Actrespecting the laicity of the State affects equality between the sexes.

While it would seem that women are affected by the Act more thanmen 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 theirindividual liberties, given the legislature’s use of the notwithstanding clause set out in sections 33 and 34 of the Act.

And it is equallyapparent 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 acondition of employment is an argument that could be raised successfully in an application for a stay by the persons referred to in section6 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 seriousconstitutional issues, is suffering serious and irreparable harm and has had his or her rights infringed, unless it is clear that the Act isinvalid. [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, inRJR MacDonald, where an important public health issue was involved), it is not for the courts to interfere in the legislature’s choice todefine 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 andindividual liberties of individuals in Quebec and in Canada, including the right to equality. As the Supreme Court noted in RJR, theCharter 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 ofour law), the courts must be deferential at this preliminary stage of the case.

I acknowledge, however, that it may seem counterintuitiveto ask the courts to set aside certain fundamental rights whose respect they have worked for decades to ensure.

This is likely why thejudge of first instance found it necessary to indicate six times in his judgment that no argument regarding the use of the notwithstandingclause 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 womengraduates 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 theyhold all the skills. [102] Consequently, I would dismiss the appeal, without costs, given the nature and seriousness of the issues raised.

DOMINIQUE BÉLANGER, J.A. 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 thefollowing 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 ifthe application were refused.

Finally, an assessment must be made as to which of the parties would suffer greater harm from the grantingor refusal of the relief pending a decision on the merits: Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110; RJR – MacDonald Inc. v.

Canada (Attorney General), (SCC), [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 thatthe public interest, which is presumed to be reflected in the impugned legislation, must be considered and given the weight it shouldcarry: 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”, becausedoing so “would in effect require judicial inquiry into whether the government is governing well”, which is not the role of the courts.

Onthe contrary, the court should in most cases assume that irreparable harm to the public interest would result from a suspension of thestatute. [105] Courts are very familiar with these rules, including the rule pertaining to what is often referred to as the presumption of thevalidity of laws. In this regard, it is appropriate to cite the following passage from the decision of the Supreme Court of Canada inHarper 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 avalidly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good. Rather, at this stage of theproceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--Macdonald Inc. v. Canada (Attorney General), (SCC), [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 whetherthe legislation actually has such an effect.

It must be assumed to do so. In order to overcome the assumed benefit to the public interestarising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that thesuspension 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 casethe spending limits imposed by s. 350 of the Act — is directed to the public good and serves a valid public purpose. This applies toviolations of the s. 2(

b) right of freedom of expression; indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumptionof the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or alegislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complexand difficult matter.

It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds ofalleged 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 inrare circumstances. Indeed, the decision to grant or refuse such a remedy is a discretionary exercise on the part of the judge of firstinstance and an appellate court must not interfere solely because it would have exercised the discretion differently.

In MetropolitanStores, pp. 155-156, the Supreme Court of Canada specified the circumstances under which the exercise of that discretionary power canbe overturned on appeal and they were recently reiterated by Brown, J., writing for a unanimous Supreme Court in R. v.

CanadianBroadcasting 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 beforehim”, where an inference “can be demonstrated to be wrong by further evidence that has [since] become available”, where there has beena change of circumstances, or where the “decision to grant or refuse the injunction is so aberrant that it must be set aside on the groundthat 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 thefollowing rules established by the Act respecting the laicity of the State and that this harm justifies an immediate suspension of theserules: (

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 toreceive a service 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 servicesprovided by Quebec’s public, parapublic and municipal sectors, establishments akin thereto and certain people closely related to thepublic sector, such as members of the National Assembly, elected municipal officers, peace officers and physicians (collectively referredto 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 theirface 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 ScheduleII; the functions in question are primarily that of police officer, teacher, school principal and judicial personnel member (excludingjudges, 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 wouldresult from the requirement to receive public sector services with one’s face uncovered if doing so is necessary to allow one’s identity tobe verified or for security reasons.

Indeed, none of the numerous affidavits filed by the appellants addresses the rule set out in the secondparagraph 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 ofs. 8 of the Act, which requires public sector personnel members to exercise their functions with their face uncovered.

There is no affidavitestablishing the fact that a public sector personnel member would lose their employment as a result of the application of this rule or thatan 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 exercisingfunctions 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. canbe 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 religiousbelief.

In the absence of evidence, however, such a situation appears hypothetical at this time. The evidence in the appeal record istherefore clearly insufficient to justify an immediate suspension of the first paragraph of s. 8 of the Act. [113] As for the rule set out in s. 6, which requires police officers, teachers, school principals and judicial personnel to refrain fromwearing religious symbols in the exercise of their functions, it is important to note that it does not apply to those currently employed, butonly 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 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 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 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. [ 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 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 länder s and, in the past, Turkey, to name but

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