Quebec's religious symbols law passes 1st legal test as judge refuses injunction

A Quebec Superior Court justice has rejected a request to temporarily suspend parts of the province's new religious symbols law, though he did agree it raises "serious" constitutional questions.

Justice Michel Yergeau said Thursday the court must defer, at this stage, to the power of elected politicians to pass legislation they believe is in the public good. 

The law, which was passed by the Coalition Avenir Québec government last month, seeks to affirm laicity, or secularism, within the province's civil service.

More controversially, it bans public teachers, police officers, government lawyers and other authority figures from wearing religious symbols at work. It also requires public services to be given without face coverings such as the niqab.

Within hours of the law coming into effect, two civil society groups —  the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA) — filed a motion challenging its constitutionality. 

That motion included a request for an injunction, a legal measure that would have frozen parts of the law while waiting for the courts to weigh in on the bigger constitutional question.

"It's a very disappointing decision," said Noa Mendelsohn Aviv, director of the CCLA's equality program. "It allows a discriminatory law to continue to operate."

As part of its motion, the CCLA and NCCM included several affidavits from, among others, a Muslim education student who wears the hijab and a Jewish lawyer who wears the kippa. They said their career prospects have been ruined by the law.

"It's having a real impact on people. At the end of the day, it's about what people can and can't wear," Aviv said.

Impact of notwithstanding clause

Thursday's decision represents the first time a court has issued an opinion on the law, which was backed by one opposition party, the Parti Québécois. The provincial Liberals and the centre-left Québec Solidaire voted against it. 

"We welcome the decision delivered today by the Quebec Superior Court. This confirms that the law ... is applicable," a spokesperson for Immigration Minister Simon Jolin-Barrette, who sponsored the legislation, said in a statement.

The government hoped to shield the law from constitutional challenges by invoking the notwithstanding clause; meaning critics can't appeal to the fundamental freedoms section of the Charter of Rights and Freedoms to get it struck down.  

The strategy, which provoked widespread criticism from jurists and civil rights groups, paid off in the initial court challenge.

At several points in his decision, Yergeau said the injunction request had a steeper hill to climb because the civil society groups couldn't argue the law violated fundamental freedoms protected by the charter.

"The plaintiffs had no other choice for success than to base themselves on purely constitutional arguments, as opposed to Charter arguments, whose validity remains uncertain," the decision reads.

Yergeau added that it is "very rare" for courts to issue injunctions that are not based on charter violations.

'In the common good'

There are four criteria that have to be met in order for a judge to grant an injunction: a law must raise serious constitutional questions, cause irreparable harm, its suspension must not be overly inconvenient and the matter must be urgent.

Yergeau said only the first condition was met in the motion presented by the civil society groups. 

He noted, in particular, the arguments that the law trampled on federal jurisdiction and violated minority rights had enough merit to warrant further consideration by the courts.

But he also said claims that the law had caused irreparable harm were "purely hypothetical and often speculative" given the motion filed so quickly after it was passed.

Moreover, Yergeau said he didn't see what was so urgent about the injunction request, pointing out it was filed on behalf of a Muslim education student who is only due to graduate in 2020. 

When it came to weighing the balance of inconvenience, Yergeau said it was not up to a judge, who is considering whether to grant an injunction, to question the wisdom of a law. 

"Once passed by a democratically elected legislature, the law is taken to have been in the public interest and in the common good," Yergeau's judgment reads.

The NCCM and CCLA said in a statement they were taking time to review the decision before deciding whether to appeal.

The decision does not affect that part of the group's motion that challenges the law's constitutionality. A court will hear arguments about whether that challenge can go forward at a later date.