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UPDATE: Quebec face covering ban suspended

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Several weeks ago, a Quebec court suspended the ban on face coverings until the provincial government brings certain legal provisions and Minister’s guidelines into effect.

The crux of the issue was that the core provision of the law – the prohibition on face coverings for public service personnel and recipients of public services – was brought into force on October 18 of this year, but the legal framework for allowing religious accommodations has yet to be brought into effect.

The application to suspend the law was brought by the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and Marie-Michelle Lacoste, a Muslim woman who wears a niqab.  They successfully argued that the prohibition on face coverings – without any ability to request an accommodation on religious grounds – cause irreparable harm.  They maintained that the harm in question is not limited to individual women such as Lacoste who would be ineligible for public sector jobs and would be unable to access basic government services, but extends to the broader Muslim community within Quebec and across Canada.

The Court held that this specific application fell under a “very narrow, unusual and special exception” to the abundance of case law holding that legislation shouldn’t be suspended before a finding of unconstitutionality.  This is because in developing the statute, the legislature considered religious accommodations to be such an integral component of the law that a framework for such accommodations was embedded in it. And yet when the case was pleaded, the Attorney General of Quebec provided no reason for why the coming into force of the accommodation framework is delayed. In essence, the court held that the law is presently ambiguous, incoherent and incomplete.

The order to suspend the face veil ban is most welcome, but keep in mind that unless the law is repealed by the Quebec National Assembly, we can expect a protracted legal battle in which the courts will consider whether the law is unconstitutional. Those who applied for the stay (i.e. the suspension of the law) have also filed a lawsuit against Quebec in which they will argue that the law violates the guarantees of freedom of religion and the right to equality grounded in both the Quebec Charter and the Charter of Rights and Freedoms.  The merits of such arguments will not be considered until a trial is held and all the evidence considered. We will be sure to update you as the matter winds its way through the legal system.

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