FIRST DEFEAT FOR BILL 62
Judge suspends section of facecovering law
Quebec’s recently adopted legislation concerning religious neutrality has failed its first legal test.
In a decision delivered on Friday, Quebec Superior Court Justice Babak Barin agreed with a request from Marie-Michelle Lacoste, a Muslim woman who wears a veil, for a temporary suspension of the section of the law that requires an uncovered face when giving or receiving public services. That section of the law placed a prohibition on a person working for the government or seeking government services while their face is covered.
“(Barin’s decision means) the law is not in effect right now,” said Catherine McKenzie, the lawyer who is representing Lacoste in her case. Barin’s decision was on a motion filed as part of a broader challenge of the legislation that will probably be before the courts for a while. “We had to show on a reasonable basis that we had a serious argument to make. That there was going to be serious harm to our client that was more important than any so-called good that could come from the law.”
A more permanent section of the legislation is supposed to be in put place by the government no later than July 2018. Lacoste and two groups, the National Council of Canadian Muslims and the Corporation of the Canadian Civil Liberties Association, asked for the stay while arguing more harm than good was being brought upon her while the government makes up its mind as to what the law will actually cover.
“The next step for me right now is to wait to see what the government will do and also to get our (overall) case ready for the merits (of the legislation),” McKenzie said. In the overall case, Lacoste will have to prove the legislation violates her rights, while the government would then have to justify their law and that the violation is reasonable in a just society, the attorney said.
Lacoste was born and raised in Montreal and has been a Muslim since 2003. She began to wear a hijab in 2005 and a niqab since 2011. As part of her case, she told Barin she wears the niqab at all times outside and inside in the presence of men other than her husband. She also said that since the legislation was adopted she is concerned about using public services and has experienced an increase in personal harassment and insults while outside her home.
Quebec’s Attorney General argued that Lacoste and the two groups supporting her failed to show that they had suffered irreparable harm and that their application for the stay was premature. Barin disagreed with the government’s stance.
“To be clear, at this juncture, the Court is seized of the question of stay only. Nothing in this judgment therefore ought to be in any way construed as touching upon the merits (of Bill 62),” the judge wrote. “The trial of this case, if necessary, will take place more fully in the future.”
The more permanent part of the legislation (Section 11) is supposed to establish what accommodation provisions are necessary for the application of the law. Barin argues that should have been done in October.
“In any statute such as the Act, there is perhaps as much public interest in Section 11 as there may be in (the section Lacoste challenged in her motion). These two sections must operate hand-in-hand if the intention of the (National Assembly) is to offer accommodation to those who may be seeking it in the face of the government’s actions.”
Barin also noted that the government “provided no reason for why the coming into force of Section 11 is delayed.”
“In the interim, noble as the ideology of state religious neutrality may be, the government must ensure that the law it is adopting for the public good is coherent and complete,” Barin wrote.
“To paraphrase the words of the Supreme Court (of Canada), public interest includes both the concerns of society at large and the particular interests of identifiable groups.”