Friday, December 13, 2019

Appeals Court Refuses Temporary Injunction Against Quebec's Secularism Act

In Hak v. Attorney General of Quebec, (Quebec Ct. App., Dec. 12, 2019) (full text of opinion in French), the Quebec Court of Appeal, by a 2-1 vote, upheld a trial court's refusal to issue a temporary injunction against the enforcement of two provisions of the Secularism Act (Bill 21). The sections at issue bar teachers, as well as various other public employees and officials, from wearing religious symbols in carrying out their official duties, and prohibit various public employees from carrying out their functions with their face covered. The individual plaintiff in the case who is about to graduate as a teacher wants to wear her hijab while teaching French in an English elementary or high school.

Judge Belanger refused to grant the temporary injunction, saying in part:
What the Attorney General invokes in this case and with reason, that is the presumption that the legislation addresses the common good . At this stage of the proceedings, the Court must assume that the Act serves a valid public purpose. Unless it is clear that the law enacted is not intended to serve a public purpose, the courts must take it for granted.
It follows from this principle that the courts will not suspend legislation passed by a legislature without having made a full constitutional review. Accordingly, suspension orders are only issued in clear cases.
We must recognize that we are not in a clear case where we can say right now that the Act is unconstitutional, despite the presence of serious issues.
Judge Mainville would likewise refuse a temporary injunction, saying in part:
[W]hen, as here, questions arise about the relationship between the state and religions, on which deep differences may reasonably exist within a free and democratic society, there is a need for courts to act with caution and circumspection because of the diversity of approaches to these issues and the difficulty of forming a uniform understanding of the meaning of religion in society. The role and impact of religion in society, as well as the forms of public expression of religious belief, are not the same in different times and contexts. They vary according to changing sociological and ideological factors, national traditions and demands imposed by the protection of the rights and freedoms of others and the maintenance of public order in a given society. The conception of the religious symbolism and its place in the public space are not perceived in the same way by each society.The State Secularism Act is a striking example in Canada.
It should therefore be noted that many of the issues relating to the wearing of religious symbols by police officers, teachers, principals and judicial personnel in Quebec - including the legal issues that arise - are complex and do not lend themselves to summary analyzes on the basis of piecemeal evidence, as the appellants ask us to do in this case.....
At this stage of the judicial proceedings, a suspension of sections 6 and 8 of the State Secularity Act can not be contemplated since the Court must presume that the public interest is served by the maintenance in force of these provisions given the presumption of constitutional validity. 
Chief Justice Hesler would have granted a temporary injunction, saying in part:
To sum up, it appears at this stage that the risk of suffering irreparable harm has materialized for certain teachers, all of whom are women, who aspired to a career in teaching. The prejudice will remain for the others who, not wishing to abandon the wearing of a religious sign, will have to give up their choice of career, or even move out of Quebec....
Without prejudging the fate of the appeal, which will be heard in October 2020, it is better to uphold respect for fundamental rights during the proceedings, considering the obligation on the courts to enforce these rights, rather than to deprive people of their fundamental rights, even for a limited time. [All English translations are via Google Translate].
Montreal Gazette reports on the decision.