A divided Quebec Court of Appeal, grappling with a series of controversial complaints against its Chief Justice, has refused to stay sections of the province’s secularism bill even though it plainly acknowledges that the controversial ban on religious symbols is causing irreparable harm to some people.
The decision comes on the heels of a series of complaints lodged against Quebec Court of Appeal Chief Justice Nicole Duval Hesler before the Canadian Judicial Council over bias she has allegedly demonstrated against the province’s secularism law.
“It is obvious that the ethics process is being exploited by people who are fully aware of the consequences,” said Emmanuelle Bernheim, a law professor at the Université de Québec à Montréal who co-wrote the book “Applied Judicial Ethics.” “The chances that the complaints will go anywhere are very limited. But the consequences, or potential consequences, go beyond the question of laicity. It seems to me that it brings into question the legitimacy of the courts in general. It’s very disturbing.”
The divisive debate over the Act respecting the laicity of the State (Act) has spilled over into the appeal court decision, according to Maxime St-Hilaire, a constitutional law professor at the Université de Sherbrooke. St-Hilaire believes that two of the appeal court justices, Chief Justice Nicole Hesler Duval and Justice Robert Mainville, unnecessarily ventured into the merits of the case rather than issue a cursory judgement that examined whether Quebec Superior Court Justice Michel Yergeau erred when he refused to stay sections of the Act.
“This was a missed opportunity to have a less dogmatic and politicized debate,” remarked St-Hilaire. “I see traces of the impending politicization of the debate through certain actions by the chief justice, and in the ruling itself which goes far too much into the merits of the case when we are at an interlocutory stage.”
Enacted on June 2019, Bill 21 prohibits some public civil servants in authority, such as police officers, teachers and judicial personnel, from wearing religious symbols in the workplace. The bill includes a notwithstanding clause – s.34 expressly states that its provisions will have effect regardless of s. 2 and 7 to 15 of the Canadian Charter.
The day after the bill was enacted, a university student, the National Council of Canadian Muslims and the Canadian Civil Liberties Association sought to have the Act declared invalid as well as suspend the applications of sections 6 and 8 which prohibits some civil servants from wearing religious symbols in the exercise of their functions and which compels people seeking public services to have their face uncovered. They argued that the Act was unconstitutional because in pith and substance it was criminal legislation, a matter under exclusive federal jurisdiction. They also asserted that the vagueness of certain “essential” aspects of the Act violates the rule of law, and that the Act violates the structure of the Constitution.
On July 2019, Justice Yergeau dismissed their application for a provisional stay of s. 6 and 8 after he concluded that allegations of an infringement of the freedom of conscience, religion, thought, belief, opinion or expression cannot be considered allegations of serious and irreparable harm in an interlocutory judgment seeking to suspend the effect of the Act, where the very reliance on the notwithstanding provisions is not challenged.
The appeal court upheld the lower court ruling. Thanks to the legislature’s use of the notwithstanding clause in the Act, the appeal court “must” be deferential at a preliminary stage of a case and “must refuse” to suspend the Act even if a person has raised “serious” constitutional issues, suffered “serious and irreparable” harm and has had his rights infringed – unless it is clear that the Act is invalid which is not the case at bar, held the majority.
“Even in the absence of an urgent evil to eradicate or a situation affecting a pressing public need, it is not for the courts to interfere in the legislature’s choice to define the public interest as it sees fit,” said Quebec Court of Appeal Justice Dominique Bélanger in her brief four-page ruling in Hak c. Procureure générale du Québec, 2019 QCCA 2145. Justice Robert Mainville, while concurring with the Justice Bélanger’s conclusion, offered different reasons – principally replying to reasons penned by the chief justice — in his 12-page ruling. Chief Justice Duval Hesler dissented.
But in another unusual twist in the case, the parties were invited during the appeal court’s case management conference to address the application of s. 28 of the Canadian Charter within the scope of the appeal. Under s. 28, “notwithstanding anything in this Charter,” the rights and freedoms in it are guaranteed equally to men and women. That “significantly” changed the parties positions and arguments, pointed out Justice Duval Hesler. No Canadian appellate court has ever examined the interplay between s. 28 of the Canadian Charter and the notwithstanding clause, added Justice Duval Hesler. “The judgment of first instance was largely based on the existence of the notwithstanding clause, which according to the judge, closed the down to Charter arguments,” noted Justice Duval Hesler. “The addition of s. 28 to the present debate makes this a Charter discussion, given that the s. 33 override may not effect gender quality, if that is the interpretation to be given to the texts of the two sections.”
After briefly reviewing the legislative history of s. 28 and 33 of the Canadian Charter Justice Duval Hesler held it is “premature” to conclude that the “effect of the override declaration” set out in s. 34 of the Act would exclude any possible challenge from a discrimination perspective. She would have granted the stay, concluding that 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.
“What kind of a management conference was that and for the chief justice to discuss s. 28 of the Canadian Charter which was not even argued by the parties and for her to mention it in her reasons is stunning,” remarked St-Hilaire.
Justice Mainville, after highlighting the complexity around Islamic veiling and providing a brief overview of how some European nations dealt with the issue, countered that the courts should tread with “care and circumspection” when questions arise over the relationship between the State and religions. “The role and impact of religion in society, as well as the forms of public expression of religious convictions, differ depending on time and context,” said Justice Mainville.
He added that it’s not even clear whether s. 28 of the Canadian Charter is an interpretative or prescriptive provision, leading him to conclude that the state of law around s. 28 is “much too nebulous and embryonic” to claim at this preliminary stage that it is a provision that can “clearly frustrate” the application of s. 33 of the Canadian Charter and the notwithstanding provisions of the Act to justify an immediate stay.
“It’s astonishing that the judges said so much on the merits of the case,” said St-Hilaire. “I hope that the judges, even if I agree with the conclusions of the appeal decision, will not sit on the panel that may one day hear the case on its merits.”
The Superior Court is scheduled to hear the case next October but it will not be the sole case involving the religious neutrality law that will be before the courts. The English Montreal School Board, the province’s largest English-language school board, filed a lawsuit in October arguing that Bill 21 is hampering its ability to hire teachers. Another teacher’s union, the Fédération Autonome de l’Enseignement, too launched a suit this past November.
In the meantime a cloud hangs over the appeal court chief justice even though some of members of the Quebec legal community are far from impressed by the nature of the complaints, all of which snowballed after a college history professor caused a stir in Quebec’s legal and political circles a week before the appeal court rendered its decision. The Canadian Judicial Council (CJC) has received “multiple letters of concern,” said Johanna Laporte, director of communications with the CJC.
In accordance with the CJC’s review procedures, the executive director must review all correspondence to the CJC to determine whether it warrants consideration. If the executive director, Norman Sabourin, determines that a matter does warrant consideration, then it’s referred to the Chairperson of one of the Vice-Chairpersons of the Judicial Conduct Committee, said Laporte. The complaints against Justice Duval Hesler are currently under consideration, added Laporte.
The history professor, Frédéric Bastien, believes that the Justice Duval Hesler should recuse herself from the case in part because she said she was feminist during the appeal court hearing. Robert Leckey, dean at McGill University’s Faculty of Law, and a constitutional law expert, dismissed that complaint out of hand. “We’ve come to a very strange place if favouring the equality of men and women is a political position inappropriate on the part of a judge,” said Leckey.
The college professor also chastised the Justice Duval Hesler for remarks she made during the appeal court hearing. “What is the balance of convenience?” Justice Duval Hesler asked in a widely reported exchange that took place during the appeal court hearing on the motion for the stay. “The visual allergies of certain people or the fact that teachers lose the right to enter into the profession of their choice?”
Those remarks prompted Bastien to lodge a complaint before the CJC. But judges have great latitude to make sure they understand the case, to test arguments and search for weak spots and to put lawyers on the spot by asking tough questions, and at times judges play the devil’s advocate, said Leckey. “The questions they ask aren’t only the ones that reflect their personal view,” noted Leckey.
On top of that, a hearing comes relatively late in the decision-making process, added Leckey. By the time lawyers show up at a hearing, a judge has read all the written arguments. In an appeal case hearing, an appeal judge will have read the prior judgment being appealed, will have read the evidence, and will have read the record. In short, the oral hearing is one part of the process, said Leckey.
“It’s unrealistic to think that having read all of the documents the judge would be completely indifferent between the two sides when she enters the hearing,” said Leckey. “Some of the people most offended by her comments or most persuaded that they show bias are people who are unquestionably defenders of Bill 21.”
The chief justice’s remarks were gauche, and perhaps best avoided, but the complaint is without merit and has little chance of making inroads in the CJC, said Bernheim.
“Given the unique political context, we are now seeing how the judicial process, and judges themselves, can be at times subject to pressure from interest groups who have something at stake before cases being heard by the courts,” said Bernheim. “This is hard ball, and to be expected. By trying to discredit the chief justice they are at the same time trying to delegitimized the judicial process. It’s clear they are afraid of losing the case.”
Justice Duval Hesler also came under fire for scheduling to take part in a dinner organized by the Lord Reading Law Society, which represents Quebec Jewish jurists. Bastien, among others, criticized the chief for preparing a dinner speech for an organization that opposes Bill 21. “It would be a shame if judges no longer, to be on the safe side, participate in anything,” remarked Bernheim. “We do not want this institution to be completely detached from society.”
The controversy surrounding the chief justice, and the appeal court decision itself, reveals the politicization of the case even though it is in the early stages of the legal debate, according to St-Hilaire, who is hoping that a serene debate, with comparative law shedding light on the issues at hand, will take place when the case will be heard on the merits.
“We’re still at the interlocutory stage and there have already been petitions, a mobilization against the chief justice whose comments were clumsy and regrettable, and a polarization of the debate,” said St-Hilaire. “Everyone loses.”
This story was originally published in The Lawyer’s Daily.