As the April 7 election showed, there are no sure things in Quebec politics. If the Parti Québécois had won, and if – as originally announced – the National Assembly had enacted Bill 60 (the “Charter of Values”) without using the notwithstanding clause, it would have been challenged in the courts, and would likely have been struck down.

With the victory of the Quebec Liberal Party, it is harder to make predictions – especially about the future, as Yogi Berra would say. The Liberals promised a more moderate version of the Charter of Values. Kathleen Weil, the new Quebec Minister of Immigration, Diversity and Inclusion, has been vague about what the legislation will contain.

Scope of any challenge

While the PQ’s Bill 60 had 52 articles, three in particular seemed vulnerable to court challenge:

  • section 5, which would have prohibited employees of public bodies from wearing headgear, jewellery or clothing which conspicuously indicate a religious affiliation;
  • section 6, which would have required employees of public bodies to keep their faces uncovered; and
  • section 7, which (subject to some unspecified exceptions) would have required anyone receiving a public service to keep their face uncovered.

Sections 6 and 7 were not the first legislative attempt to require public employees and people receiving public services to uncover their faces. While worded somewhat more obliquely, Bill 94, introduced by Jean Charest’s Liberal government in 2010, would have had the same effect. Weil has indicated that there will be some legislation on face coverings, both for those who provide and those who receive public services. The new government might also seek to legislate on the question of conspicuous religious symbols, although a Liberal bill would undoubtedly be less sweeping than the PQ’s Bill 60, and will surely not invoke the notwithstanding clause.

If legislation in this area faces a court challenge, as it very likely will, such a challenge will inevitably be brought under both the Canadian Charter of Rights and Freedoms and its Quebec counterpart. It might prove tempting for a number of judges on the Supreme Court to resolve the case under the Quebec Charter.

First stage: Does legislation infringe a Charter right?

Challenges under the Canadian Charter always involve (at least) two stages. First, the party challenging the law must show that it “infringes” one of that person’s guaranteed rights found in sections 2 through 23 of the Charter. But it is important to realize that even if this occurs, the law is not automatically struck down. The government can still justify the law as a reasonable limit that can be “demonstrably justified in a free and democratic society” under section 1 of the Charter.

Challengers would argue that legislation restricting religious dress violates freedom of conscience and religion (s. 2), freedom of expression (s. 2) and the right to equality and protection of the law without discrimination based on religion (s. 15). The government, in turn, would claim – as the PQ stated in the preamble to Bill 60 – that the measures are necessary to ensure the values of separation of religions and the state, the religious neutrality of the state and equality between women and men, and therefore justifiable under section 1. Weil has said that rather than secularism (laïcité), the government will invoke the religious neutrality of the state.

I do not think there is any doubt that the challengers would succeed in establishing that restrictions on religious dress or rules that require people to uncover their faces would infringe freedom of conscience and religion and freedom of expression, and probably the right to equality and protection of the law without discrimination based on religion. If such restrictions were upheld, it would be under section 1 of the Canadian Charter.

A law breaches freedom of religion if it interferes with a person’s ability to act in accordance with his or her sincere religious beliefs in a manner that is more than trivial or insubustantial. “Triviality” must be judged from the framework of the believer. There really cannot be any doubt that restrictions on religious symbols and face coverings interfere with sincere religious practices.

Some defenders of the law might be tempted to argue that it interferes with religious practices only if the individual chooses to be a public employee or receive a public service. The Canadian courts do not accept this line of reasoning. The public employment context might make restrictions justifiable that would not be justifiable in other contexts, but those justifications still have to be made under section 1.

If such restrictions were upheld, therefore, it would be under section 1 of the Canadian Charter. What are the chances of that?

Second stage: Can the restriction be justified?

As a general matter, it is foolish to be confident regarding what the Supreme Court of Canada will decide under section 1. The formal structure of analysis is well understood, but the actual result is frankly dependent on the views of the majority of the Court. These views are not as polarized and ideologically predictable as in the United States. This is how Canadian lawyers like it, but it makes things hard to predict (as the federal government found out when two former Supreme Court justices and the author of the most influential treatise on Canadian constitutional law failed to anticipate the result in the reference concerning its abortive appointment of Marc Nadon to the Court).

The first question in a section 1 analysis is whether the objective of the legislation is sufficiently “pressing and substantial” to warrant limiting a constitutional right. The objective is distinguished sharply from the effects. Governments are usually taken at their word as to what the objective is, and rarely lose at this stage of the analysis. However, in the case of a restriction on religious dress, there would be some pressure to have the Supreme Court say that the very purpose of this legislation is an invidious antireligious bias, and it cannot be ruled out that the Court would agree and invalidate the legislation on these grounds alone.

On balance, though, I expect the Court to be true to historical type and to accept Quebec’s objectives as legitimate, especially if the Liberals do not try to assert a strong form of secularism. Obviously, the objective of equality between men and women is legitimate and is part of the Charter. The position that upholding the religious neutrality of the state is not a pressing and substantial objective that warrants limiting religious freedom does not survive reductio ad absurdum. Governments have to be able to impose restrictions on a government worker prosletyzing on the job. Even if questioning the motives of Quebec governments is popular in English Canada (although perhaps not so much for a federalist one), it would tend to undermine the legitimacy of any adverse decision in Quebec, and I doubt the Court would do that.

However, the Court might well say that the means chosen are not proportionate to the ends, and strike down the legislation for that reason. There are three elements to the “proportionality inquiry,” as Charter jargon would have it. The first is that there must be a rational connection between the law and the objective invoked to justify it. The second, and harder, test is that the law must “minimally impair” the right. In other words, if there is a way to accomplish the same goal that does not impair religious freedom as much, the law is unconstitutional. Finally, even if the law has benefits in terms of the legitimate objective, and even if these benefits could not be achieved in a less religious freedom–impairing way, the court could still decide that the bad effects outweigh the good ones.

The Liberals have a better shot at persuading the Court of the proportionality of the measures they propose than the PQ would have had with Bill 60.

The most vulnerable provisions would be the ones regarding receiving public services, because the impact on dignity and ability to participate in society are most intense. It will be argued (in my view, correctly) that preventing women wearing veils from accessing public services undermines the gender equality it is supposed to promote by further isolating an already marginalized group of women. The Court has, in some circumstances, upheld government requirements that women with religious objections to doing so show their faces – on drivers’ licences and in courts. However, it has done so where there is an obvious utilitarian explanation for why removing a face covering is necessary or at least desirable. A broad ban might well be (and, in my view, should be) seen as too restrictive, although courts might give a lot of weight to government concerns about identification.

Restrictions on religious expression by those providing public services would be given more leeway, but should also be tied to a utilitarian justification. When Bill 60 was being debated, the opposition parties proposed restricting its application to relatively few state officials. While the Supreme Court reacts well to moderation, this seems hard to justify in principle. If it is inappropriate to stop observant Sikhs from being traffic cops, it is equally inappropriate to stop them from being judges.

The harms that legislative restrictions on religious dress would be intended to remedy seem, certainly to most English Canadian observers, to be symbolic at most. The denial of public services to women covering their faces for religious reasons seems particularly difficult to justify. Should the Liberals introduce legislation to the same effect, it will be argued (I think rightly) that this just isolates and punishes the women the law is supposedly intended to benefit.

The composition of the Supreme Court has changed since the last major religious freedom cases, and the issue has far more salience than it ever did. Past cases leave a lot of wiggle room, so this composition may make a difference. Social scientists suggest that high courts usually reflect the elite consensus as the national level. Since that consensus was strongly against Bill 60, the best way to bet was that it would have been struck down. Time will tell whether a similar national elite consensus develops on the Liberals’ alternative, but, if it does, expect invalidation.