Act respecting the laicity of the state: Quebec Court of Appeal rules on its constitutionality

The Act respecting the laicity of the State¹ (the Act) has received a lot of attention since its adoption in June 2019. On April 20, 2021, the Quebec Superior Court upheld the validity of most of the Act's provisions. Unsurprisingly, the Quebec Court of Appeal (the Court) was in turn asked to rule on the validity of the Act. In a decision handed down on February 29,² the Court confirmed the trial judge's conclusions, with one exception: according to the Court, the Act does not affect the educational language rights conferred on citizens belonging to Quebec's English-speaking minority. The Superior Court judgment is therefore overturned on this point.

The Court’s decision

The challenge to the Act on appeal 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).³ We have provided some of the Court’s conclusions below.

Constitutional arguments not linked to fundamental rights

Division of powers — The parties opposed to the Act sought to have it declared invalid on the grounds that it contravened the division of legislative powers enshrined in sections 91 and 92 of the Constitution Act, 1867 (CA, 1867). Like the trial judge had concluded, the Court was of the opinion that the Act did not constitute an infringement of the division of legislative powers, although its reasoning was based on different grounds. Following the two-step approach to characterizing and classifying legislation prescribed in Murray-Hall v. Quebec (Attorney General),⁴ the Court first established that the purpose of the Act "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."⁵ In light of this characterization, the Court concludes that the Act relates simultaneously to several heads of provincial jurisdiction, and therefore does not contravene the division of legislative powers.

Constitutional architecture and unwritten principles — The Court finds that the trial judge was justified in dismissing the arguments based on the Act's incompatibility with the constitutional architecture and with the unwritten principles of the Constitution. The Court is of the view that the deficiencies in the evidence presented by the opponents of the Act as to the content of the "Doctrine of participation in public institutions" justify rejecting this argument. In fact, the case law on constitutional architecture is devoid of any indication to the effect that the Act would threaten the "basic structure" of the Constitution. The Court also confirmed that the Act did not lack precision "as not to give sufficient guidance for legal debate,"⁶ and that it could not be invalidated by the extension of the unwritten principles of the Constitution. 

Arguments based on fundamental rights 

Use of the notwithstanding clauses — The Court indicated that the trial judge had rightly dismissed the challenge based on the Quebec legislator's use of the "notwithstanding clause," i.e. the power to derogate from the charters enshrined in sections 52 of the Quebec Charter and 33 of the Canadian Charter. Following the principles established in Ford v. Quebec (Attorney General),⁷ a ruling by which the Court said it was bound, the legislator could, by a simple express statement to that effect, provide that the Act applies notwithstanding the rights and freedoms defined in the Canadian and Quebec Charters.

Infringement of fundamental rights and declaratory or pecuniary remedies — Like the trial judge, the Court refused to rule on the question of whether or not the Act infringes a right or freedom recognized by the charters and expressly derogated from by the legislator. It points out that, when the legislature avails itself of the derogation provided for in section 33 of the Canadian Charter, the courts "can no longer engage in the process of verifying whether the statute complies with […] the provisions being overridden,"⁸ thereby excluding the possibility of obtaining redress. The same reasoning applies when the legislature resorts to section 52 of the Quebec Charter. Thus, it was not for the Court to rule on the validity of the Act with regard to the provisions of the charters from which it expressly derogates.

Sections 28 of the Canadian Charter and 50.1 of the Quebec Charter — As did the trial judge, the Court rejected the argument seeking to invalidate the Act on the basis of section 28 of the Canadian Charter and section 50.1 of the Quebec Charter, which enshrine the right to sexual equality. The Court specifies that these provisions have an "interpretative provision"⁹ and that they do not create any standalone right to sexual equality. 

Section 23 of the Canadian Charter — The Court is of the opinion that 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. In fact, the Court indicated that the provisions of the Act do not have the effect of preventing the use of the English language in educational programs. It therefore rejected the arguments put forward by the opponents of the Act, and indicated that granting it "would artificially constitutionalize a practice […] and has absolutely nothing to do with the English language as it is taught and used by Quebec’s linguistic minority."¹⁰ In short, the Court concludes that the trial judgment confers too broad a scope on section 23 of the Canadian Charter,¹¹ which entitles it to intervene to reverse the trial judgment on this point.

Section 3 of the Canadian Charter — Like the trial judge, the Court finds that the Act infringes the right to be qualified for membership in a legislative assembly, as guaranteed by section 3 of the Canadian Charter. As such, the Act has the effect of obliging any person elected as a member of Parliament, following a provincial election, to perform their functions with their face uncovered. Where the Court is concerned, this constitutes a limit "that is imposed on persons wishing to seek the votes of their fellow citizens,"¹² and this contravention of a right guaranteed by the Canadian Charter was not justified by the Attorney General of Quebec.¹³ 

Conclusion

In essence, the Court confirms the validity of the Act. Nevertheless, given the fundamental nature of the issues it raises, this decision will likely be appealed to the Supreme Court of Canada. We will keep you informed of any further developments.

The author would like to thank Clara Larocque, articling student and Dante Trunzo, student, for their contribution to preparing this legal update.