Savard, Morissette, Bich

Version française du sommaire : Sommaire

Text of the decision (in French) : Constitutionnalité de la Loi sur la laïcité de l’État

English Translation of the Judgment of the Court: Constitutionality of the Act respecting the laicity of the State 

SUMMARY

This summary does not form part of the Court’s judgment, does not replace the reasons set out in the judgment and must not be used in legal proceedings.

Since its enactment, the Act respecting the laicity of the State (“Act”) has been the subject of controversy. One can certainly have many different views about the Act, whether from a political, sociological or moral perspective. The Court’s judgment, however, will evidently consider only the legal aspect of the debate. Like the Superior Court before it, the Court here is acting as part of a process (one initiated by various groups of litigants) to examine the legality of the Act, and it is not ruling on the wisdom of enacting it. (Paras. 11 to 14)

The Court’s judgment rules on eight appeals, four incidental appeals and four interventions against the judgment rendered on April 20, 2021, by the Superior Court (the Honourable Mr. Justice Marc‑André Blanchard), which declared certain provisions of the Act of no force or effect under two aspects, otherwise confirming the validity of the Act.

On appeal, the challenge to the Act, which for the most part repeats the debate that took place in the Superior Court, comprises two main facets: (1) constitutional arguments not related to fundamental rights, and (2) arguments based on fundamental rights guaranteed under the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and the Charter of Human Rights and Freedoms (“Quebec Charter”).

Under the first facet, the parties submit arguments pertaining to the following themes:

• the division of legislative powers (ss. 91 and 92 of the Constitution Act, 1867 (“CA 1867”));
• the supra‑legislative effect of certain pre‑Confederation statutes (Quebec Act, Rectories Act, Hart Act);
• Canada’s constitutional architecture and the unwritten principles of the Constitution; and
• section 31 of the Canadian Charter.

Under the second facet, the parties assert arguments in relation to the following themes:

• the use of the notwithstanding clauses provided for in the Canadian Charter (s. 33) and in the Quebec Charter (s. 52);
• the infringement of certain fundamental rights (freedoms of conscience, religion and expression; equality rights) and the granting of declaratory and pecuniary relief;
• the equal guarantee of rights for both sexes (s. 28 of the Canadian Charter and s. 50.1 of the Quebec Charter);
• minority language educational rights (s. 23 of the Canadian Charter);
• the right to be qualified for membership in a legislative assembly (s. 3 of the Canadian Charter); and
• the validity of the enumerations conducted by the government prior to the adoption of the Act.

The Court’s judgment addresses each of these matters in turn.

* * *

PART I: CONSTITUTIONAL ARGUMENTS NOT RELATED TO FUNDAMENTAL RIGHTS

Division of powers (Paras. 71 to 108)

Like the trial judge, but for substantially different reasons, the Court finds that the Act complies with the division of legislative powers set out in ss. 91 and 92 of the CA 1867.

When the constitutionality of a statute is challenged under those provisions, courts must apply a two‑step analytical framework to resolve the dispute. They must first characterize the impugned statute (that is, identify its “pith and substance”) and then, through a classification process, connect it to one or more of the subsections of ss. 91 and 92 of the CA 1867.

In the present case, the Act’s purpose — its pith and substance — is to affirm the laicity of the state as a fundamental principle of Quebec public law, to establish the requirements that flow therefrom, to guarantee the right to lay parliamentary, government and judicial institutions, and to regulate the conditions for the exercise of certain functions within those institutions and within state bodies. The trial judge therefore erred in finding that ss. 6 and 8 of the Act [translation] “appear to be in the nature of provisions that deal with religion in a manner that is traditionally in relation to criminal law” (trial judgment, para. 417). This characterization is unduly narrow and confuses the purpose of the Act with the means used to implement it, and only some of them, at that. This error, however, is inconsequential to the outcome of the dispute. (Paras. 101‑102)

As regards the Act’s classification, the trial judge found that it was impossible for him to conclude that it encroaches on the federal criminal law power, because it [translation] “does not include sanctions of a type that could lead to its classification as criminal law” (trial judgment, para. 434). One could adopt the judge’s finding on this point, but this is unnecessary because his approach is the converse of the required approach. The judge should have asked himself: “Given the Act’s characterization, can it be grounded in one or more heads of power set out in s. 92 of the CA 1867?” The answer to this question could only be yes, which the judge in fact acknowledged. Indeed, it is clear that, in various respects, the Act is connected simultaneously to subsections 4 (Establishment and Tenure of Provincial Offices, Appointment and Payment of Provincial Officers), 13 (Property and Civil Rights in the Province) and 16 (Matters of a merely local or private Nature in the Province) of s. 92 of the CA 1867. Moreover, several provisions of the Act can be characterized under s. 45 of the Constitution Act, 1982 (“CA 1982”) as amendments to the constitution of the province. In no respect can the Act be considered to fall within the scope of s. 91(27) of the CA 1867 (criminal law). (Paras. 103 to 107)

Pre‑Confederation statutes (Paras. 109 to 183)

In the Court’s view, the trial judge was right to reject the submissions of the Act’s opponents based on the Quebec Act (1774), the Rectories Act (1852) and the Hart Act (1832). None of these pre‑Confederation statutes is supra‑legislative in scope, nor can any of them serve as a basis for invalidating the Act.

Quebec Act (1774) (Paras. 116 to 148)

The Quebec Act is an ad hoc imperial statute, in the sense that it fits within the context of a colonial conquest. Through their arguments, the parties opposed to the Act have attempted to lend it a meaning it never had.

If we bear in mind, as a guiding thread, what happened to the “supra‑legislative” nature of imperial laws through the constitutional reforms that followed the Quebec Act, we note that it was consistently eroded, to the point of eventually being entirely supplanted by subsequent local and constitutional laws. Throughout the period in question, there was a gradual devolution of legislative and constitutional sovereignty from Great Britain to Canada (and therefore to Quebec, to the extent of the legislative powers over which it has jurisdiction). In 1982, at the end of this long evolution, the former federal and provincial colonies together inherited all of the powers that had hitherto been exercised in Canada by the Parliament in Westminster. From that point forward, all was said and done, and, since then, the Quebec Act no longer had any effect on federal or provincial laws. (Paras. 139 to 147)

Ultimately, the Quebec Act is of historical interest, but it is a statute that has not been mentioned in the case law for some time. It cannot serve as a basis for invalidating the Act. Moreover, no precedent was invoked in which a court has upheld a constitutional challenge to legislation of Quebec, Lower Canada or the Province of Canada on the basis of rights affirmed in the Quebec Act. (Para. 148)

Rectories Act (1852) (Paras. 150 to 176)

The Rectories Act is a colonial statute that likely fell under a field of provincial jurisdiction which subsequently came under s. 129 of the CA 1867. Thus, after Confederation, its subject matter fell under Quebec’s jurisdiction. It gradually metamorphosed into the Freedom of Worship Act, which, together with the Quebec Charter, is now the only remaining trace of the Rectories Act in the laws of Quebec. One must therefore conclude that the Rectories Act either became obsolete or fell into disuse.

The assertion that, at one time, the Rectories Act had a supra‑legislative scope is ill‑founded. Moreover, like the Quebec Act, the Rectories Act and those that followed it were never used as the foundation for invalidating legislation on the basis of unconstitutionality. It, too, cannot serve as a basis for invalidating the Act. (Paras. 174‑175)

Hart Act (1832) (Paras. 177 to 182)

The trial judge meticulously traced the evolution of legislation in Lower Canada and in Quebec between 1832 (the year in which the Hart Act was enacted) and 1888. He listed the laws that, during that period, absorbed and confirmed the principle first articulated in the Hart Act. Although the Hart Act was never formally repealed, it was rendered obsolete by the provisions of these laws.

The trial judge was also right to reject the argument that the Hart Act was incorporated into the Constitution by s. 129 CA 1867. Section 129 is a transitional provision [translation] “and does not confer constitutional status on the laws in force at the time of Confederation” (trial judgment, para. 567). It, too, cannot serve as a basis for invalidating the Act.

Constitutional architecture and unwritten principles (Paras. 184 to 201)

In the Court’s opinion, the trial judge was right in dismissing the grounds challenging the Act on the basis of Canada’s constitutional architecture and the unwritten principles of the Constitution.

Nothing in the case law regarding the notion of constitutional architecture leads to the inference that the prohibitions established by the Act threaten the “basic structure” of the Constitution in any way whatsoever. The parties opposed to the Act attempted to demonstrate that the Act derogates from our constitutional architecture by transgressing what they refer to as the “Doctrine of participation in public institutions”, but they were unable to clarify the origin or content of that doctrine. They argued that their claim is grounded in the Quebec Act, the Constitutional Act, 1791, the Rectories Act and the Hart Act, all of which they submit are components of the Constitution. On this point, the matter of the supra‑legislative effect of these statutes has already been disposed of. None of these statutes — nor anything in the current text of the Constitution — provides a basis for accepting their argument.

As for the Constitution’s unwritten principles, it seems clear, in light of the ruling in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, that the notions of constitutional architecture and basic constitutional structure cannot be extended in a way that enables the parties opposed to the Act to achieve the objective they seek.

Lastly, the Act complies with the principle of the rule of law. The parties opposed to the Act allege that its provisions (particularly the definition of “religious symbol” in s. 6) are vague and, consequently, deficient in this respect. They are mistaken. On reading the impugned provisions of the Act, it is impossible to argue that they do not “give sufficient guidance for legal debate”. When the time comes, such a debate will provide an opportunity to decide between the various arguments submitted in the matter at hand regarding the Act’s scope and to adopt a firm interpretation of the provisions in question. The arguments of the Act’s opponents based on alleged inconsistencies in the Act or between the Act and the State Religious Neutrality Act are also ill‑founded. In law, it is impossible to achieve the absolute clarity and coherence sought by the parties opposed to the Act, and it is futile to aspire to do so.

Section 31 of the Canadian Charter (Paras. 202 to 212)

The Court dismisses the challenge to the Act based on s. 31 of the Canadian Charter, a provision that states that the Charter does not extend the legislative powers “of any body or authority”. This ground was raised for the first time on appeal.

Given the Court’s conclusions as to the constitutionality of the Act with regard to the division of powers and the pre‑Confederation statutes, most of the arguments made under this heading can be summarily dismissed. As to the argument that the legal principles underlying the pre‑Confederation statutes have been constitutionalized despite such statutes having been repealed or replaced, and that these principles would allow the Act to be invalidated through s. 31 of the Canadian Charter, the argument does not withstand analysis. (Para. 205)

First, there is no basis for suggesting that these principles were constitutionalized before the enactment of the Canadian Charter. (Para. 209)

Second, the written text of the Constitution (the Canadian Charter) guarantees freedom of religion and expressly authorizes Parliament or a legislature to set limits to that freedom (s. 1) or to override it (s. 33). Accepting the submissions of the Act’s opponents would be tantamount to disregarding this text, however clear it may be, and recognizing two separate freedoms of religion within our constitutional order: an unwritten one — which would be guaranteed implicitly by the Constitution, and with respect to which no limitations or exceptions would be permitted — and another — guaranteed expressly by the same Constitution, and which could be subject to certain restrictions or exceptions. This is evidently nonsensical. Unwritten constitutional principles cannot be used to dispense with the written text of the Constitution. (Para. 210)

In reality, the parties opposed to the Act are urging the Court to use s. 31 of the Canadian Charter to disregard ss. 1 and 33 of that Charter. Yet, no part of the Constitution can abrogate another part thereof. In the case at bar, there is no basis for reading s. 31 as containing a limit on the override power provided for in s. 33. (Para. 211)

* * *

PART II: ARGUMENTS BASED ON FUNDAMENTAL RIGHTS

Use of the notwithstanding clauses (Paras. 213 to 311)

The Court finds that the trial judge did not err in dismissing the challenge to ss. 33 and 34 of the Act, which sections reproduce, respectively, the wording of s. 52 of the Quebec Charter and s. 33 of the Canadian Charter, the latter two sections giving legislatures the power to override certain provisions of those very charters.

The Court is of the view that the trial judge rightly held that he was bound by the ruling in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (“Ford”). There is no error in the judge’s reading of that decision.

According to Ford, s. 33 of the Canadian Charter establishes only requirements of form, such that judicial review of the exercise of the override power is strictly limited to an analysis of these requirements. Consequently, courts cannot require legislatures to explain or justify the appropriateness of the legislative policy behind the exercise of that power. Nor can they require legislatures to demonstrate the existence of a link or relationship between the overriding statute or provision and the guaranteed rights or freedoms being overridden. Legislatures can use the override power provided for in s. 33 of the Canadian Charter in a purely preventive manner. These teachings laid down in Ford are not obiter, contrary to what the parties opposed to the Act contend. (Paras. 244 to 255)

The principles outlined in Ford also apply to s. 52 of the Quebec Charter. The wording of that section requires nothing more than an express statement that the statute or legislative provision applies despite the Quebec Charter. Moreover, the basis for the override authority provided for in each of the charters is the same. That said, if requirements of form are sufficient to justify an override of the rights and freedoms enshrined in the Constitution, they are certainly equally sufficient to justify an override of the provisions of the Quebec Charter, a quasi‑constitutional statute. (Para. 257)

The ruling in Ford is still authoritative. The Act’s opponents have not demonstrated a new legal issue that would justify reconsidering this precedent. (Paras. 264 to 298) They have also failed to identify a change in circumstances or evidence since Ford was rendered that fundamentally shifts the parameters of the debate and would allow the Court to set it aside. (Paras. 302 to 308)

Since ss. 33 and 34 of the Act satisfy the requirements of form set out in Ford, the challenge by the parties opposed to the Act cannot succeed in this respect. (Para. 311)

Infringement of fundamental rights and declaratory or pecuniary remedies (Paras. 312 to 415)

Like the trial judge, but for reasons that differ in part from his, the Court refuses to rule formally on whether the Act contravenes any of the provisions to which the overrides apply and, if so, to issue a declaratory judgment to that effect. (Para. 314)

When a legislature, relying on s. 33 of the Canadian Charter, decides to derogate from that Charter’s ss. 2 or 7 to 15, it protects or exempts the statute from their application, such that the statute operates without regard to these provisions, sheltered from the effects that would otherwise result from s. 52(1) of the CA 1982. By invoking s. 33 of the Canadian Charter, the legislature limits the judicial review of the statute’s constitutionality with respect to the provisions being overridden. The courts can no longer engage in the process of verifying whether the statute complies with the provision or provisions being overridden, and any notion of redress — including declaratory relief — is thus excluded. (Paras. 317 to 319, 348 to 350)

The same conclusion applies when the legislature invokes s. 52 of the Quebec Charter to derogate from any of ss. 1 to 38 of that charter. A statute containing a declaration that complies with s. 52 is immune from judicial review of its conformity with the provisions being overridden. (Paras. 330 and 359)

Subsection 24(1) of the Canadian Charter cannot be construed as empowering the courts to grant declaratory relief despite the use of s. 33 — which would necessarily oblige them to first review the statute’s conformity with the provisions from which it has been exempted, thus engaging in an exercise that is precisely what s. 33 precludes. This is not possible. Nor it is permissible under arts. 142 and 529 C.C.P. Similarly, neither s. 49 of the Quebec Charter, nor, once again, arts. 142 and 529 C.C.P. can impede the effect of a declaration made under s. 52 of the Quebec Charter. (Paras. 368‑369)

In the present case, therefore, the Court cannot rule on whether the Act is (or is not) consistent with the provisions of the charters from whose application it has been exempted. More specifically, the Court is not empowered to rule on whether the Act infringes the freedoms of religion and expression or the right to equality guaranteed by the charters.  (Paras. 370 to 372)

Additional comments are in order regarding the pecuniary relief claimed by some of the Act’s opponents. This remedy would be inappropriate even if, hypothetically speaking, the Court were to consider the Act’s compliance with the provisions of the charters from whose application it has been exempted and were to declare, again hypothetically, that the Act infringes them. Firstly, such a judicial declaration would in no way affect the applicability of the Act, nor would it render the Act of no force or effect or weaken its binding force. Secondly, even when a statute does not contain an override provision, a finding that it violates the Canadian Charter or the Quebec Charter cannot generally give rise to an order for damages. (Paras. 373‑374)

Subsidiarily, assuming the Court were empowered to rule on the Act’s compliance with the overridden provisions of the charters, the doctrine of mootness would require that it nevertheless refrain from granting declaratory relief. Indeed, determining whether the Act infringes the freedoms of religion and expression or the right to equality is a moot issue, insofar as recognizing the existence of a violation would not entail any practical legal effects: the Act would continue to apply even in the event of an infringement. Moreover, the conditions that allow a court to answer a moot question have not been met here. (Paras. 378, 403‑404)

* * *

A few additional comments are in order regarding the use of the notwithstanding clauses and regarding the role of democratic institutions.

When a legislature invokes s. 33 of the Canadian Charter, it deprives persons of the right to challenge the statute on the ground that it infringes some of their fundamental rights. But it is the Constitution itself, which, through s. 33, withdraws this function from those that courts ordinarily exercise, leaving it to the political bodies and the electorate to decide the matter. Since s. 33 creates an exception to s. 52 of the CA 1982, the Court cannot disregard it and rule on a question that no longer falls within its power of judicial review. The same is true in respect of s. 52 of the Quebec Charter. (Para. 409)

That being said, there is no denying that the very existence of s. 33 of the Canadian Charter and s. 52 of the Quebec Charter has given rise to criticism. But the debate on the appropriateness of including a notwithstanding clause in a charter of rights and freedoms already took place, on the basis of the same arguments, and has been settled since 1982 in the case of the Canadian Charter and since 1975 (and then 1982) in the case of the Quebec Charter. It is not the role of the courts to seal the gaps, if any, in a constitutional (or legislative) choice that some consider ill‑advised. (Paras. 410‑411)

Our civil society, whose weight and importance in protecting rights and freedoms cannot be ignored, is not without its means if it deems a legislature’s use of the notwithstanding clauses to be inappropriate. Public backlash and the reaction of citizens can also act as a bulwark against the use of notwithstanding clauses. Moreover, the electorate holds the power to defeat any government that has used (or abused) the override power conferred on it by the charters. (Paras. 412‑413)

Nor can we ignore the role of the legislature itself in defending and promoting rights and freedoms, especially when the Constitution “gives it the final say”. Legislating on rights and freedoms is no ordinary matter and merits a full and rigorous examination, all the more so when overriding those rights and freedoms. The subject, however, is a matter for parliamentary discussion. (Paras. 414‑415)

Section 28 of the Canadian Charter and s. 50.1 of the Quebec Charter (Paras. 416 to 514)

Like the trial judge, the Court dismisses the challenge to the Act based on s. 28 of the Canadian Charter and s. 50.1 of the Quebec Charter.

Section 28 does not create a standalone right to sexual equality. It serves an interpretative purpose and is one of the elements that must be considered when courts examine the meaning, scope and application of ss. 2 to 23 of the Canadian Charter. Section 28 thus sets out a type of “interpretative injunction”, which is implicitly incorporated into each of ss. 2 to 23, as if it were a paragraph or subsection added to them. Consequently, insofar as s. 33 of the Canadian Charter allows legislatures to override ss. 2 and 7 to 15, it also allows them to override the effect of s. 28. Indeed, s. 33(1) contains no limit in that regard. Section 28 cannot defeat s. 33, whether by conditioning its use, neutralizing its effect or excluding s. 15(1) from its scope (in the case of sex‑based discrimination). Therefore, s. 28 cannot stand in the way of the application of s. 34 of the Act, a provision which, in accordance with s. 33 of the Canadian Charter, overrides ss. 2 and 7 to 15. The Act cannot be invalidated, in whole or in part, on the ground that it violates s. 28. (Paras. 505‑506)

This reasoning can be transposed to s. 50.1 of the Quebec Charter. Because of its interpretative purpose, s. 50.1 has the same effect as if it were incorporated into each of ss. 1 to 48 of that charter. Thus, once the legislature shields a statute or provision from any of ss. 1 to 38 of the Quebec Charter, as it did here (s. 33 of the Act), the rights and freedoms so overridden are no longer effective and no longer offer protection to persons who would otherwise avail themselves thereof. Thus, s. 50.1 having been deprived of its substratum, it no longer applies, at least as long as the override provision is in force. (Paras. 507 to 514)

Section 23 of the Canadian Charter (Paras. 515 to 615)

In the Court’s opinion, the trial judge erred in finding that certain provisions of the Act infringe s. 23 of the Canadian Charter, a provision that enshrines minority language education rights.

When interpreting and applying s. 23, the first concern must be the rights of the persons contemplated by the provision (rights holders), followed by a consideration of the impact that an infringement of these rights may have on the situation of other beneficiaries of the regime, such as the primary and secondary school students and the “educational facilities” intended to provide instruction to those students. The Canadian Charter, after all, introduces s. 23 with the title “MINORITY LANGUAGE EDUCATIONAL RIGHTS”. No such rights holder, however, is prejudicially affected here. Nothing in the Act has any impact whatsoever on the use of the English language in teaching programs in schools. Nor does anything curtail its use in a schooling context, whether it be by students, in the offices of the school boards, or in the schools where members of the linguistic minority perform their professional duties as teachers, pedagogical support personnel, school administrators or otherwise. Rather, what is at stake here is a restriction on recruitment practices, which in no way pertains to linguistic considerations. (Para. 605)

Accepting the argument of the parties opposed to the Act would artificially constitutionalize a practice that has absolutely nothing to do with the English language as it is taught and used by Quebec’s linguistic minority in the primary and secondary schools. The justification so offered amounts at best to an extrapolation from well‑settled rules: it is premised on the alleged possibility for educational facilities governed by s. 23 to protect and promote the distinct “culture” which is said to prevail in the English schooling system, a culture that, it is claimed, fosters diversity and, in particular, religious diversity. “Culture”, understood as an ethnological or sociological concept, takes many different forms, and the concept certainly extends well beyond the notion of “language of the minority”. It can stretch in many directions and, indeed, apply to a number of things that have little or nothing to do with language as such. (Paras. 607‑608)

What is valued, according to the Act’s opponents, is a culture of openness, of diversity, and of the Canadian heritage of multiculturalism and pluralism, particularly as regards religion. In respect of multiculturalism and cultural diversity, while it is true that s. 27 of the Canadian Charter expressly makes room in the Constitution for the “multicultural heritage of Canadians”, s. 27 must be read and reconciled with s. 23, which does not refer to cultural minorities other than the English linguistic minority and the French linguistic minority, such minorities being the sole rights holders under this provision. (Para. 609)

This is not to say that no rational link can exist between the language of a linguistic minority contemplated by s. 23 and the culture of this minority, suffused as it is with its language and supported by it. In the instant case, what is at stake, however, is not the close, even interwoven, relationship between a minority language protected by s. 23 and the culture it disseminates where the use of this language is widespread enough. Instead, the argument of the parties opposed to the Act attempts to take elements that are unrelated to language, sharing no characteristics with it, and glue them together around the notion of “culture”. At best, according to this argument, such elements are peripheral to the notion of culture, and even this remains to be shown. Under this guise, applications have been presented to the Court which, in light of the relevant jurisprudence, have nothing in common with claims that, in the last 35 or 40 years, were successfully argued under s. 23 of the Canadian Charter. By granting these applications, the trial judgment gives s. 23 a scope it does not have. In so doing, it erroneously concludes that the Act infringes this provision. The Court must therefore intervene to reverse the disposition in the trial judgment on this point. (Paras. 610 to 614)

Section 3 of the Canadian Charter (Paras. 616 to 698)

The Court confirms the trial judge’s findings based on s. 3 of the Canadian Charter, a provision that protects the right to be qualified for membership in a legislative assembly.

The Court cannot fault the judge for having considered, as part of his analysis under s. 3, the matter of the existence of a parliamentary privilege. In light of the real ambiguity stemming from the submissions of the Attorney General of Quebec (“AGQ”) on that issue, the judge could reasonably have understood that the AGQ was relying on parliamentary privilege as a ground of defence. The situation on appeal is different, however, notably in light of the AGQ’s clarifications and the intervention of the President of the National Assembly, both of whom ask that the Court refrain from opining on the matter. Considering the circumstances before it, the Court deems it inappropriate to rule on the existence (or non‑existence) of a parliamentary privilege. (Paras. 637, 642 to 644)

Like the trial judge, the Court finds that the combined effect of the first paragraph of s. 8 and paragraph 1 of Schedule III of the Act (obligation of members of the National Assembly to exercise their functions with their face uncovered) infringes the right to be qualified for membership in a legislative assembly, as guaranteed by s. 3 of the Canadian Charter.

Contrary to the AGQ’s submission, the constitutional challenge based on s. 3 is not based on a purely theoretical and hypothetical situation. The record includes the required elements to rule on the scope of that section and on any violation thereof. (Paras. 661‑662)

The protection conferred by s. 3 of the Canadian Charter extends beyond the mere right to stand for election; it includes the right to sit as a member of Parliament or a legislative assembly once elected. This right is subject to no internal limit. Consequently, insofar as the AGQ has chosen not to rely on the existence of a constitutional limit that would circumscribe the scope of s. 3 (such as a parliamentary privilege), the Court must conclude that s. 8 para. 1, in conjunction with para. 1 of Schedule III of the Act, infringes that section. Indeed, the combination of those provisions requires any person elected following a provincial election to exercise their functions as a member of the National Assembly with their face uncovered. In practice, this means that a person whose sincere religious beliefs compel them to wear a religious symbol that covers their face (such as a niqab or a burqa) could not exercise the functions of a member of the National Assembly. That requirement constitutes a limit, a restriction that is imposed on persons wishing to seek the votes of their fellow citizens. Persons who wear a religious symbol that covers their face (that is, in the current sociological context, the few Muslim women who wear a niqab or burqa out of religious conviction) are thus denied the right to participate meaningfully in the electoral process, because standing for election is useless to them if they cannot subsequently exercise the functions arising from being elected. (Paras. 668, 676 to 678)

The AGQ’s choice not to adduce any evidence or make any submissions to discharge his burden of justifying this infringement under s. 1 of the Canadian Charter is critically important here. Although there may be cases where certain elements of this burden are “obvious or self‑evident”, or can be based on logic and reason or judicial notice, such is not the case here. Absent evidence or even submissions on the part of the AGQ to justify the infringement, the Court cannot undertake a s. 1 analysis on its own motion. The Court therefore has no choice but to conclude that the infringement of s. 3 of the Canadian Charter is unjustified. (Paras. 684‑685)

The Court also shares the trial judge’s conclusion that paras. 1 and 6 of Schedule II, read in conjunction with s. 6 of the Act, do not infringe s. 3 of the Canadian Charter.

Although s. 3 must be given a generous interpretation, nothing leads to the conclusion that the right to be qualified for membership in a legislative assembly, as enshrined in that section, includes the right to be appointed to the Conseil exécutif as Minister of Justice or to be elected to the presidency or vice‑presidency of the National Assembly by its members. This appointment and this election are not the result of citizens exercising their right to vote, but of decisions made by third parties (the Prime Minister* and all the members of the National Assembly). They arise in an entirely different context, subsequent to the exercise of the democratic rights protected by s. 3 and separate from the electoral process. (Para. 693)

Enumerations (Paras. 699 to 703)

The Court finds that the trial judge did not err in dismissing the application challenging the enumerations conducted by the government prior to the passage of the Act. The Court agrees with the judge’s conclusions and reasoning on this point.

* * *

CONCLUSION

To summarize, the Court, like the trial judge, finds that:

• the Act is valid with respect to the division of powers; (Paras. 107, 205)
• the Act does not offend Canada’s constitutional architecture or the unwritten principles of the Constitution, nor does it offend any pre‑Confederation statute or principle having constitutional status; (Paras. 148, 174‑175, 182, 211)
• ss. 33 and 34 of the Act, which, respectively, override ss. 1 to 38 of the Quebec Charter and ss. 2 and 7 to 15 of the Canadian Charter, comply with the notwithstanding clauses provided for in those charters (s. 52 of the former and s. 33 of the latter), provisions whose use is subject only to the requirements of form set out in Ford, which requirements have been met in the case at bar; (Para. 311)
• given these valid override provisions, the Act is protected from the judicial scrutiny thereof which could otherwise have been carried out under ss. 2 and 7 to 15 of the Canadian Charter and ss. 1 to 38 of the Quebec Charter, and there is no reason to examine the matter or consider a declaratory judgment or any other remedy; (Paras. 370 to 372, 374‑375, 403‑404)
• the Act does not infringe s. 28 of the Canadian Charter or s. 50.1 of the Quebec Charter (sexual equality); (Paras. 505‑506, 514)
• s. 6 and paras. 1 and 6 of Schedule II of the Act (prohibition on the wearing of religious symbols by the President/Vice-Presidents of the National Assembly and the Minister of Justice) do not infringe s. 3 of the Canadian Charter (right to be qualified for membership in a legislative assembly); (Para. 693)
• s. 8 para. 1 of the Act, as it applies to the persons referred to in the first paragraph of Schedule III of said statute (obligation for members of the National Assembly to have their face uncovered when exercising their functions), infringes the rights entrenched in s. 3 of the Canadian Charter, without being justified under s. 1 thereof, and it must consequently be declared of no force or effect under s. 52(1) of the CA 1982; (Paras. 676 to 678, 684‑685)
• the enumerations carried out by the government before the Act’s passage do not depart from any constitutional or legislative rule. (Para. 701)

Contrary to the trial judge’s finding, however, the Court is of the opinion that the Act complies with s. 23 of the Canadian Charter and does not affect the educational language rights that provision confers on citizens belonging to Quebec’s English linguistic minority. The trial judgment is therefore reversed on that point. (Para. 614)

For these reasons, the Court allows in part the appeal of the Attorney General of Quebec et al. (500-09‑029550‑217) and allows the appeals of Pour les droits des femmes du Québec-PDF Québec (500‑09‑029549‑219) and the Mouvement laïque québécois (500‑09‑029539‑210), solely in the file in first instance 500‑17‑109983‑190 (English Montreal School Board et al. file), without legal costs on appeal.

The Court reverses in part the judgment at first instance for the sole purpose of replacing the disposition in file 500‑17‑109983‑190 (English Montreal School Board et al. file), which is found in paragraphs 1137 to 1141 of that judgment, with the following:

In file 500‑17‑109983‑190 (English Montreal School Board et al. file):

[1137] DISMISSES the application for judicial review and for a declaratory judgment of the English Montreal School Board, Mubeenah Mughal and Pietro Mercuri; and the interventions in support of this application;

[1138] Without legal costs.

The other appeals, incidental appeals and interventions are dismissed, without legal costs on appeal.

* TRANSLATOR’S NOTE: More often referred to as “Premier” in common parlance.

Text of the decision (in French) : Constitutionnalité de la Loi sur la laïcité de l’État

English Translation of the Judgment of the Court: Constitutionality of the Act respecting the laicity of the State