Décision

OVERVIEW

[1]           The National Council of Canadian Muslims (NCCM), Marie-Michelle Lacoste and the Corporation of the Canadian Civil Liberties Association seek a stay of section 10 of Bill 62 named An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies[1], pending a final determination on the merits of their application to have that section, and section 15 of the act, declared constitutionally invalid and inoperative.

[2]           The Canadian Human Rights Commission, the Commission des droits de la personne et des droits de la jeunesse and the Fédération des Femmes du Québec were permitted to intervene in this matter. They all support the position of the Plaintiffs. The last two added oral representations at the hearing.

[3]           It appears important to note that both Commissions are given, respectively by the Federal and Québec legislator, a public interest mission to ensure that the principles set forth in their enabling legislation are respected[2].

[4]           On October 18^th, 2017, the Act was passed and assented to by the Québec National Assembly with the exception of certain specific provisions. The Act came into force the same day.

[5]           Section 10 states:

Act 10.      Personnel members of a body must exercise their functions with their face uncovered.

Similarly, persons who request a service from a personnel member of a body referred to in this chapter must have their face uncovered when the service is provided.

[6]           On December 1^st, 2017 this Court granted in part an interim stay of the operation of section 10 of the Act until such time as section 11 of the same Act was brought in force and was fully operational in accordance with the guidelines set out in section 12.

[7]           Sections 11 and 12 provide:

Act 11.      When dealing with a request for an accommodation on religious grounds resulting from the application of section 10 of the Charter of Human Rights and Freedoms, the body must make sure that:

(1)  the request is serious;

(2)       the accommodation requested is consistent with the right to equality of women and men and the right of every person to be treated without discrimination;

(3)       the accommodation requested is consistent with the principle of State religious neutrality; and

(4)       the accommodation is reasonable in that it does not impose undue hardship with regard to, among other considerations, the rights of others, public health and safety, the proper operation of the body, and the costs involved.

                  An accommodation may be granted only if the person making the request has cooperated in seeking a solution that meets the criterion of reasonableness;

Act 12.      The Minister must establish guidelines for dealing with requests for accommodations on religious grounds in order to support bodies in their application of section 11.

                  The guidelines must be published on the website of the Ministère de la Justice.

[8]           Section 11 comes into force on July 1st, 2018.

[9]           It bears noting that on May 9^th, 2018, the guidelines for dealing with requests for accommodation on religious grounds[3] made under section 11 were published. In the Accommodation Guidelines we find the following in respect of requests for accommodation relating to the obligation to have one’s face uncovered:

A person who, for religious reasons, wears clothing covering the face could request an accommodation regarding that obligation, which must comply with the criteria provided for in section 11. When assessing whether the accommodation is reasonable, the body must also take into consideration the objectives set out in section 1 of the Act, namely, to ensure quality communication between persons and allow their identity to be verified, and for security purposes.[4]

[10]        Section 17 of the Act creates an accommodation officer for the relevant public bodies subject to the Act:

Act 17. It is incumbent on the person exercising the highest administrative authority over the personnel members referred to in Chapters II and III to take the necessary measures to ensure compliance with the measures set out in those chapters. For that purpose, the person must designate an accommodation officer within the personnel.

The functions of the officer consist in advising the person and the personnel members of the body regarding accommodation matters, and making recommendations or giving opinions to assist them in dealing with any requests received.

[11]        The list of the agencies to which section 11 of the Act and the Accommodation Guidelines apply[5] shows that there are over 100 separate agencies or other organizations affected by the Act including daycares, universities, social services providers, hospitals, police services, museums, public transit authorities and the SAQ to name just a few.

[12]        Women who cover their faces for religious reasons will need to make a separate accommodation request from each of the agencies with which they come into contact. In reality, this would require that an accommodation request would have to be made, in advance, by the women who cover their faces for religious reasons to do such basic things as ride the bus or metro, attend a health care facility, pick up a child from school, vote, attend school or go to a museum.

[13]        As will be discussed later, it remains unclear, to say the least, as to how a person will be accommodated on an individual basis, for example to be able to ride the bus, knowing that the accommodation is personal in nature and that the person will be in contact with a great number of different persons delivering the services in question.

THE POSITION OF THE PARTIES

[14]        Plaintiffs submits that section 10 of the Act requires all persons to uncover their faces in order to either work for the public service or receive public services. For them, in reality, this law applies to Muslim women who choose to wear a face covering as an expression of their sincerely held religious beliefs.

[15]        This means that certain women in Québec will be faced with the daily choice of either engaging in activities that all Quebecers take for granted - obtaining health care, taking public transport, attending school, going to work - or expressing their sincerely held religious beliefs.

[16]        They plead that individuals should not be confronted with these types of choices, absent some serious and overriding concern such as one relating to public safety and security. However, the law does not limit itself to those circumstances. Rather, it contains a restriction both on working in the public service and on obtaining public services for those Muslim women who cover their faces in accordance with their sincerely held religious beliefs, unless these women accept to leave their religion at the door of any public institution. No other members of society are faced with this choice.

[17]        They add that while the law contains a provision which purports to offer some accommodation for those rights are infringed, the process required to ask for that accommodation is onerous, humiliating, and unlikely to result in true accommodation.

[18]        They conclude that when legislation clearly interferes with freedom of religion, the Court has the power to intervene, both on the merits, and, in exceptional circumstances, as is the case here, on an interim basis.

[19]        Eventhough the AG concedes that there is a serious issue to be tried, she pleads that section 10 of the Act constitutes a minimal, even a trivial, impairment to religious freedom that does not trigger a violation of section 2 a) of the Canadian Charter[6] and section 3 of the Québec Charter[7]. For her, the position of the plaintiffs stems from an incomprehension and/or a deficient reading of the law. For her, the alleged prejudice of these women in purely theoretical and cannot rebut the presumption that the Act serves the public interest.

[20]        She adds that, for the collective interest, the legislator has reached a decision on a controversial social issue and that the common good favors the application of the Law.

[21]        The Commission considers the existence of section 10 as extremely worrying since it participates in the stigmatization of women and more particularly, veiled women. It pleads that section 10 has the effect of upending the social contract that has existed in Québec society until then and that it erects as a norm the violation of fundamental rights.

[22]        For the Federation, the contested disposition of the Act carries a strong sense of islamophobia and racism since the state in no longer neutral. It notes that the chilling effect of the Law is clear, as shown by the uncontested proof made by the plaintiffs.

ANALYSIS

[23]        The seminal case of RJR-MacDonald Inc. v. Canada (Attorney General)[8] sets forth the criteria for the issuance of a stay of the application of a law pending review of its validity:

1)     There must be a serious issue to be tried.

2)     Irreparable harm will occur if the stay is not granted.

3)     The balance of convenience favors granting the stay

[24]        The Court must not only be concerned by the legal effects of a literal interpretation of the law but also by its practical effects, both real or reasonably foreseeable that flow from its application[9].

A)        URGENCY

[25]        As a preliminary step the Court must also ascertain whether it is urgent to decide the matter. Obviously, in the present situation, with the effect of the Act coming into force on July 1^st this criterion is met by the applicants.

B)       SERIOUS QUESTION TO BE TRIED

[26]        There can be no doubt that there is a serious question to be decided at trial. The AG does not deny that such is the case here. For the Court, it is obvious that the effect of sections 10 and 15 of the Act does constitute, prima facie, a violation of section 2 a) of the Charter which provides for freedom of conscience and religion as does section 3 of Québec’s Charter.

[27]        Definitely, at trial, the onus will be on the AG to demonstrate that sections 10 and 15 of the Act can be justified in a free and democratic society.

C)       IRREPARABLE hARM

[28]        The affidavits filed clearly show that irreparable harm will be suffered by Muslim women who have decided, for religious reasons, to cover their faces in public. In R. v. Big M Drug Mart Ltd.[10], the Supreme Court recognizes that freedom can primarily be characterized by the absence of coercion or constraint, within reason, by the state[11].

[29]        In Tabah v. Québec (Procureur général)[12] it is also stated that irreparable harm results from the bare violation of constitutionally protected fundamental rights[13].

[30]        The chilling effect of section 10 on Muslim women is also demonstrated by the affidavits filed. At this stage, this proof, unopposed by the AG, clearly demonstrates irreparable harm.

D)       BALANCE OF CONVENIENCE

[31]        In Harper v. Canada (A.G.)[14] the highest Court affirmed:

On the one hand stands the benefit flowing from the law. On the other stands the rights that the law is alleged to infringe. [A stay] may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decide. Conversely, denying [the stay] may deprive the plaintiffs of constitutional rights simply because the courts cannot move quickly enough […].

[32]        It is only in rare and exceptional cases that the effect of democratically enacted legislation should be suspended before a finding of unconstitutionality or invalidity.

[33]        Is this such a case?

[34]        To paraphrase the principles expressed by the Supreme Court in Manitoba (A.G.) v. Metropolitan Stores Ltd.[15] the question the Court must answer can be expressed thusly: Is it more important to maintain the status quo existing before Bill 62 or to apply, stricto sensu, the principle of constitutional conformity?

[35]        In determining the balance of convenience the Court can assess the nature and extent of the harm that will be suffered by Muslim women and the harm done to society if the effect of the legislation in suspended. In that regard, as a question of background, it appears important to note that the AG and plaintiffs are incapable of identifying the approximate number of persons subject to the Act.

[36]        The Court finds it rather surprising that the AG is incapable of stating approximately how many women could be subjected to the provisions of the Act. Obviously, arriving at a precise number is beyond any reasonable duty owed by the state, but a general approximation as to the possible number would be informative, especially to ascertain who is contemplated by the legislation. The AG is unable to commit to a number but agrees that it is to be understood that there is, at most, a few hundred veiled Muslim women to which the Act applies.

[37]        Consequently, it appears reasonable to state that the number of women who wear the niqab in public is extremely low. At most a few hundred. Plaintiffs evaluate that it would be around two hundred, and it would appear that the geographical concentration of the women concerned is located in the greater Montreal area.

[38]        For the Court, this element is not trivial. At this point it does allow to see how many persons are affected by the legislation, but also, and probably more importantly, it illustrates the extent of the social behavior the legislator wanted to regulate.

[39]        Eventhough the Court is conscious that it cannot, at this stage, analyse the matter under section 1 of the Charter, the apparent strength of the arguments of the parties on this question can be an indication as to whether or not the law carries a greater social benefit than it does harm to the Muslim women who decide to cover their faces in public for religious reasons.

[40]        In this regard, Courts must be very careful in assessing the reasons why the legislator has decided to legislate. In Alberta v. Hutterian Brethren of Wilson Colony[16], the Supreme Court stated:

[35] This Court has recognized that a measure of leeway must be accorded to governments in determining whether limits on rights in public programs that regulate social and commercial interactions are justified under s. 1 of the Charter. Often, a particular problem or area of activity can reasonably be remedied or regulated in a variety of ways. The schemes are typically complex, and reflect a multitude of overlapping and conflicting interests and legislative concerns. They may involve the expenditure of government funds, or complex goals like reducing antisocial behaviour. The primary responsibility for making the difficult choices involved in public governance falls on the elected legislature and those it appoints to carry out its policies. Some of these choices may trench on constitutional rights.

[36] Freedom of religion presents a particular challenge in this respect because of the broad scope of the Charter guarantee. Much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held religious belief. Giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs, including the attempt to reduce abuse of driver's licences at issue here, to the overall detriment of the community.

[41]        The Court added:

[69] A very different kind of relationship exists between a legislature and the people subject to its laws. By their very nature, laws of general application are not tailored to the unique needs of individual claimants. The legislature has no capacity or legal obligation to engage in such an individualized determination, and in many cases would have no advance notice of a law's potential to infringe Charter rights. It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief. Laws of general application affect the general public, not just the claimants [page 603] before the court. The broader societal context in which the law operates must inform the s. 1 justification analysis. A law's constitutionality under s. 1 of the Charter is determined, not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact. While the law's impact on the individual claimants is undoubtedly a significant factor for the court to consider in determining whether the infringement is justified, the court's ultimate perspective is societal. The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.

[42]        The Court is mindful of what the Supreme Court stated in Metropolitan Stores[17] concerning the duty of a Court at this interlocutory stage to the effect that it is not in an adequate position to decide the merits of the case eventhough the evidence that is likely to be adduced under section 1 of the Charter seems of little weight[18].

[43]        The highest Court added:

Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically-elected legislatures and are generally passed for the common good, for instance: the providing and financing of public services such as educational services, or of public utilities such as electricity, the protection of public health, natural resources and the environment, the repression of what is considered to be criminal activity, the controlling of economic activity such as the containing of inflation, the regulation of labour relations, etc. It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit of the common good.[19]

[44]        Also, in Québec (Procureure générale) v. D’Amico[20], the Court of Appeal stated:

« […] au stade provisoire ou interlocutoire, les tribunaux doivent tenir pour acquis qu’une mesure législative attaquée sert un objectif d’intérêt public valable et doivent, dans la mesure du possible, éviter de se prononcer sur le fond du litige à moins que des circonstances exceptionnelles soient en cause. »[21]

[45]        In the present instance, contrarily to the situation in Hutterian Brethren or Metropolitan Stores for example, since nothing can lead the Court to any other reasonable understanding of the relevant sections of the Act, the real effect and the logical intent of the legislator that can be deciphered from the contested legal dispositions are directed at a very identifiable and extremely minimal number of Muslim women. These dispositions do not appear to be legislative measures that are of general application to Québec’s population as a whole.

[46]        The AG is incapable of affirming that these dispositions do not have, as sole “beneficiary”, Muslim women. The Court cannot imagine to whom it might apply, other than to those women.

[47]        For the Court, the fact that a legislation of such nature is directed at such a minimal number of citizens constitutes an exceptional situation, especially in the context of assessing the balance of convenience element in the course of a stay application.

[48]        Concerning the nature of the activities that the Guidelines refer to as requiring an accommodation for the persons who request a service from someone dispensing a public service, we find a useful teaching in Big M Drug Mart Ltd[22]:

In my view, the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. The element of religious compulsion is perhaps somewhat more difficult to perceive (especially for those whose beliefs are being enforced) when, as here, it is non-action rather than action that is being decreed, but in my view compulsion is nevertheless what it amounts to.[23]

[49]        Here, the Act has the effect of modifying the social status-quo that had been existing up until the legislation was passed. The Court, again, is conscious that the presumption of constitutionality does apply in the same fashion to all laws, but, as in the present case, when the Court has to assess the balance of convenience, this element can be used to evaluate the respective advantage or inconvenience for society and for the persons subjected to section 10 of the Act.

[50]        The Court is also aware of the fact, as stated earlier, that the Supreme Court has reiterated in Hutterian Brethren that governments do possess a certain leeway in determining whether limits on rights affected by legislation that regulate social interactions can be justified under section 1 of the Charter and that the responsibility for making those difficult choices falls on the elected legislature[24].

[51]        As was the case in December 2017 when this Court ordered a stay of the operation of section 10, in substance because the Guidelines were not known, thus causing ambiguity and confusion, the discrepancies between what the AG pleaded before this Court as to how the accommodation process would work and how the law itself, the guidelines and how the minister defines[25] and understands the law[26] clearly show that confusion and ambiguity still prevail.

[52]        At the hearing, the AG repeatedly pleaded that de facto, on the spot accommodation decisions would be taken by representatives of public bodies with which the veiled women would interact. To illustrate this point, the example of the interaction with a bus driver was raised. The position taken by the representative of the AG was unambiguous: It was the individual drivers themselves who would decide whether an accommodation was required or not and that it would be contingent upon him or her to explain the refusal of accommodation if that was the decision that was taken. All of that would be done in cooperation with the officers or units responsible for dealing with requests for accommodation in their respective transit system organization.

[53]        This, according to the AG at the hearing, would be accomplished after the accommodation officer created at section 17 of the Act, would have advised the members of the public body as to how they should deal with any request for accommodation.

[54]        However the Guidelines[27] clearly state:

Designate an accommodation officer within the personnel

The functions of the officer consist in advising the person exercising the highest administrative authority and the personnel members of the body regarding accommodation matters, and making recommendations or giving opinions to assist them in dealing with any requests received.

By considering, for example, the number of employees, the services provided directly to the public and the number of anticipated requests, each body will designate, within the personnel, the person best able to perform that function.

Bodies must make known, within their organization, the names of the officers or units responsible for dealing with requests for accommodations so as to enable their employees to refer citizens toward the appropriate resources for dealing with their requests.[28]

[55]        Also, the press releases published by the AG on May 9^th, 2018[29] confirm this interpretation:

To facilitate the implementation of the Act, each body must identify the person exercising the highest administrative authority who will have responsibility for dealing with requests for accommodation. The Act specifies that that person must designate an accommodation officer.[30]

[56]        And, in as much as it is a useful legal element to use to analyse the scope of the Act, the Minister of Justice, in a press conference, expressly stated, if we are to take the same fictional example, that it would not be the individual bus driver who would be in charge of granting the accommodation[31].

[57]        It is important to underline that in regard to this aspect of the legislation, and more particularly concerning how the accommodation process is supposed to work, the AG has not submitted any evidence, except an affidavit[32] by an attorney at the Ministry of Justice in charge of coordinating and putting in place the training, in particular, for the accommodation officer within the personnel of public bodies. We learn that the training started June 12^th, 2018, that it would be available on line and that on June 19^th, 2018, 178 persons had followed one of the training sessions offered by the Ministry of Justice.

[58]        However, we have no information as to when the training is supposed to be sufficiently completed to insure that all public bodies are able to respond to accommodation requests by July 1^st, 2018, who are those accommodation officers, how are they to be contacted, how the process will work and if there is any review process of the initial decision. On this latter point it appears that only judicial recourses can be contemplated, as pleads the AG[33].

[59]        It bears noting that in their affidavits plaintiffs describe the process of accommodation in accordance with how they understand it. The AG has not contradicted that evidence, except in its oral pleading before the Court with the discrepancies that we have already noted. The accommodation process appears to be working in the fashion described by plaintiffs, as referred to in paragraph 12 of the present judgment.

[60]        Moreover, the accommodation process raises, with the evidence provided at this stage, enough questions as to how it will work in reality, to allow this Court to state that in this regard significant confusion and ambiguity does still exist.

[61]        Also, the uncontradicted evidence shows that women who wear the niqab already accept to remove it temporarily when required to identify themselves, or for security-related reasons and that no issues exist in regard to communication when they are seeking public services. It appears that, in reality, no pressing security, identification-related, or communication needs have been identified.

[62]        From all of this, the Court concludes that these elements on the evaluation of the balance of convenience, militate for the issuance of a stay.

[63]        In Mouvement laïque Québécois v. Saguenay (City), the Supreme Court opined on the question of freedom of conscience and religion and the concept of neutrality. It is important for the present purposes to quote at length from the salient elements of the decision in that regard[34]:

[71]   Neither the Quebec Charter nor the Canadian Charter expressly imposes a duty of religious neutrality on the state. This duty results from an evolving interpretation of freedom of conscience and religion. (…)

[72]   As LeBel J. noted, the evolution of Canadian society has given rise to a concept of neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard. This neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief (S.L., at para. 32). It requires that the state abstain from taking any position and thus avoid adhering to a particular belief.

[74]   By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (…). On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27 of the Canadian Charter. Section 27 requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter, but also with a view to promoting an enhancing diversity (…).

[75]   I would add that, in addition to its role in promoting diversity and multiculturalism, the state’s duty of religious neutrality is based on a democratic imperative. The rights and freedoms set out in the Quebec Charter and the Canadian Charter reflect the pursuit of an ideal: a free and democratic society. This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs (…). The state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others. It follows that the state may not, by expressing its own religious preference, promote the participation of believers to the exclusion of non-believers or vice versa.

[76]   When all is said and done, the state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. It is prohibited from adhering to one religion to the exclusion of all others. Section 3 of the Quebec Charter imposes a duty on the state to remain neutral in this regard. Today, the state’s duty of neutrality has become a necessary consequence of enshrining the freedom of conscience and religion in the Canadian Charter and the Quebec Charter.

[64]        Again, without going into the merits of the case and assessing the final legal consequences these principles enunciated by the Supreme Court will have at a later stage, they can certainly shed light on how Courts are to decide these difficult situations where the will of the state collides with the fundamental right of conscience and religion of citizens.

[65]        In assessing the balance of convenience, this Court can certainly use those teaching to determine whether or not the refusal of the issuance of a stay will harm the applicants more than it would harm the common good if it was issued.

[66]        On that point, it is important to remember that in RJR-MacDonald the Supreme Court opined that the public interest may not always gravitate in favor of enforcement of existing legislation[35] and that public interest includes both the concerns of society generally and the particular interest of identifiable groups[36].

[67]        On that particular subject, the Court can only be highly dubious as to constitutional validity of a legal process that requires a citizen to obtain, in advance, a permission from a state representative to go about her daily life. By stating this the Court is always conscious that it should not get into the merits of the case, although, in exceptional circumstances, as in this case, the Court can be required to ascertain the crux of the issues that will be debated at a later stage, especially to assess the balance of convenience in the course of the application for a stay of the effect of a legislation.

[68]        In a free and democratic society, citizens are not required to obtain, in advance, permission from any state representative to engage in unregulated social behaviour. As the law now stands, taking the bus or the subway, picking up a child at a daycare, attending an appointment at a CLSC or a hospital, visiting a museum, going to an SAQ outlet, are examples of behaviours that would require approval, in advance, by the accommodation officer of that public body, before such everyday life activities could be accomplished.

[69]        It is important to be reminded of what the Supreme Court stated in RJR - MacDonald:

For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights.[37]

[70]        The AG relies only on the presumptive constitutionality of the Act to defend the application for a stay. She has offered no evidence as to the importance of this disposition of the Act, nor as to what social problem the government was trying to correct. It appears that the Court should find that it is self-evident by the simple reading of the Act. At this stage, that may be sufficient, but with all due regard, she will have to assume that choice. The record does not offer any evidence either as to the effect the stay of application of section 10, which was ordered by this Court on December 1^st, 2017, had on society, or to put it differently, on the social behavior the legislator wanted to address and, consequently whether or not the stay had any deleterious effect on the common interest.

[71]        Obviously, this last element is not, in and of itself, dispositive of the question at hand, but it illustrates that the absence of the effect of section 10 of the Act since December 2017 did not create any social harm. Consequently, in the balance, this element favors the applicants for the issuance of a stay pending a final determination on the merits.

[72]        The Court needs to be clear. As stated in Harper[38], it is wrong for a court considering the granting of an interlocutory injunction suspending the operation of a validly enacted but challenged law, to insist on proof that the law will produce a public good, since at that stage of the proceeding, this is to be presumed[39].

[73]        However presuming that the law serves public good is one thing, but in the exercise of balancing the inconvenience that may be caused by the staying of the application of section 10, the Court can surely benefit from evidence that would explain the consequences a possible stay would bring on society or, to be closer to the issue at hand, the effect the stay issued December 1^st, 2017 did or did not have on the common good the legislator was pursuing when it enacted the legislation.

[74]        In that regard, the Court can only conclude that the stay maintained the status quo, which was the social contract prevailing at the time.

[75]        If the existing stay is not extended beyond July 1^st, the fundamental rights and freedoms of women who cover their faces for religious reasons will be seriously infringed. This case presents the Court with exactly the type of rights violation that warrants a stay.

[76]        The fact that both Commissions as interveners support the Plaintiffs, especially at this stage of the proceedings, is also an element that militates in favour of the issuance of a stay. They are both invested with a public interest mandate and, consequently, their position on the social consequences of the contested sections of the Act brings a perspective that carries a definite weight.

[77]        It bears remembering that in Singh-Multani v. Commission Scolaire Marguerite-Bourgeois[40], the case concerning the wearing of a kirpan while attending school, this Court ordered an immediate accommodation to the student until a final decision on the legality of the contested policy could be reached.

[78]        With all the due respect owed to the legislator at this stage, the Court cannot conclude that the legal scheme provided by section 10 of the Act serves the public good more than the existence of the status quo that existed before the legislation. The AG has not identified one incident that showed that the pre-existing system of accommodation was problematic or that, beside the presumption of constitutionality that flows from the simple existence of the legislation, anything else would militate in favor of upholding the effects of the Act pending the litigation.

[79]        At the cost of being repetitive, the Court, at this stage, in the presence of exceptional circumstances without going into the merits of the case, but solely for the purpose of assessing the balance of convenience, concludes that the teachings of the Supreme Court in Mouvement Laïque, support maintaining the status quo and, thus, granting the stay.

[80]        To summarize, the Court concludes that:

1)        There is a serious issue to be tried since section 10 of the Act appears, prima facie, to be a violation of section 2 a) of the Charter and section 3 of the Québec Charter which provides for freedom of conscience and religion.

2)        Irreparable harm will be caused to Muslim women as of July 1^st, 2018, if the stay is not granted and it is urgent to act.

3)        The balance of convenience favors granting the stay for the following reasons:

a)        This is one of those rare and exceptional case that allows for such a remedy to be granted.

b)        Confusion and uncertainty as to how the accommodation process will work does exist.

c)        The effect of section 10 is very significant on Muslim women who wear veils and will cause them irreparable harm while the harm to the public good in suspending that section of the Act appears to be minimal.

d)        In the present circumstances, preserving the social status quo that has existed until today appears to better serve the public interest since the harm to the public good in suspending section 10 of the Act appears to be minimal.

[81]        In light of the nature of the recourse and of the remedy ordered, the filing of an appeal is more than likely to cause serious and irreparable prejudice to Muslim women who cover their faces in public for religious reasons, it follows that the order to be issued is to be executory notwithstanding appeal.

FOR THESE REASONS, THE COURT:

[82]        GRANTS the application;

[83]        STAYS the operation of section 10 of “An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies” S.Q. 2017, c.19, pending a determination on the merits of the Application for Judicial Review, notwithstanding appeal;

[84]        Judicial costs to follow.