Law ISP Presentation - Quebec Bill 21 Case

LAW ISU - Presentation Notes For: Mr. Tropea By: Gianrocco Liotino CASE: Hak c. Procureure générale du Québec, 2019 QCCS 2989 BACKGROUND: During the 1960s, the Province of Quebec went through a period of rapid political, cultural, and social change known as the "Quiet Revolution". The role of the government in economic, social, and cultural life vastly increased, and most importantly, the role of the Catholic Church in society diminished greatly. Thus, Quebec became a secular state. CONTEXT: The Quebec Liberal government of Phillippe Couillard introduced Bill 62 to the Quebec National Assembly. The bill was passed on October 18, 2017 - ("2017 Act") the Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies. This act was controversial because Section 10 of the Act required "personnel members of a body must exercise their functions with their face uncovered," and that "persons who request a service from a personnel member... must have their face uncovered when the service is provided." On July 1, 2018 Section 11 and 12 of the Act came into force which allowed individuals to request accommodation in respect of the uncovered face requirements on religious grounds, and for the Quebec Minister of Justice to establish guidelines for the requests for accommodations. Shortly after the bill was passed, an application was brought asserting that Section 10 of the Act violated the Canadian and Quebec Charters because it prevented Muslim women who covered their faces from seeking employment and accessing public
services. Section 10 of the Act was stayed pending a final determination of the constitutional challenge. The stay was not challenged by the Couillard's Liberal government - which was defeated in the provincial election on October 1, 2018. The new government was led by Premier Francois Legault of the Coalition Avenir Québec. One of their campaign promises was to introduce a "secularism charter", which would prohibit public employees from wearing conspicuous religious symbols at work. The act would invoke the "notwithstanding clause" in the Canadian Charter and the Quebec Charter if necessary. THE "NOTWITHSTANDING CLAUSE": Under Section 33 of the Canadian Charter , however, Parliament or a provincial legislature may expressly declare that an act applies notwithstanding fundamental Charter rights, including ss.2(a) and 15, thereby immunizing legislation from a constitutional challenge on the basis that it infringes those rights. Any declaration under the so-called "notwithstanding clause," or "override," expires after five years unless it is re-enacted. Section 52 of the Quebec Charter sets out a similar derogation provision. The "notwithstanding clause" in Section 33 of the Canadian Charter of Rights and Freedoms allows federal, provincial or territorial governments to temporarily override certain Charter rights. These overrides are to be renewed after five years. SUMMARY OF THE CASE: June 16, 2019 - The Quebec National Assembly passes Bill 21 into law. In Quebec, Bill 21, An Act respecting the laicity of the State also known as the Laicity Act. Section 6 The Act p rohibits individuals from wearing religious symbols including clothing, symbols, jewellery, accessories or headwear, in the exercise of their functions. Individuals include government departments and agencies, bodies receiving public funding, municipalities, public transit authorities, school boards, child care centres, and social service institutions such as hospitals.
Section 8 of the Act states that personnel members of the bodies listed must exercise their functions with their faces uncovered, and that individuals who interact or communicate with those personnel members must also uncover their faces. The Act invokes the "notwithstanding clause," declaring that the 2019 Act has effect despite the applicable provisions of the Canadian Charter of Rights and Freedoms and the Quebec Charter. June 16, 2019 - On the same day that the Act came into force, University of Montreal student Ichrak Nourel Hak, who was prospective teacher (and who wore the hijab), together with the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA), brought an application for judicial review in the Quebec Superior Court, challenging the constitutionality of the Act and seeking a stay of Sections 6 and 8 pending final determination of the application. The Court promptly held a hearing to deal solely with the question of the stay. Regarding the constitutionality of the Act, the applicants accepted that the legislation was exempt from challenge under the "notwithstanding clause" of the Canadian and Quebec Charter s. However, they maintained that the 2019 Act was unconstitutional because: (1) it amounted to a criminal law statute and therefore fell within federal jurisdiction under the Constitution Act, 1867 ; (2) it was overly vague, and therefore violated the rule of law; and (3) it fell foul of certain fundamental principles underpinning the structure of the constitution, including respect for minority rights, by altering the structure of state institutions so as to exclude minorities from participating in them. The applicants also asserted that permitting Sections 6 and 8 to remain in force would cause irreparable harm to religious minorities by preventing them from accessing public services or taking up government employment.
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