Church and state

QCCA upholds religious covering ban. Plus Pornhub breaches privacy and counsel lack decorum.

Hearsay

PRESENTED BY

Gateway Public Affairs

California bar exam writers eager to join the legal profession didn’t get a very warm reception this week. Quite the opposite — the “Cow Palace” event centre hosting their exam was so cold that at least one candidate could see their breath. The exam is moving to a location that doesn’t also host livestock events for the July sitting.

Have a great weekend everyone.

— Dylan Gibbs

TODAY'S DOCKET

5 min read

  • Quebec public servants still can’t wear religious headwear

  • BC finally gets more judges

  • Ontario reinstates administrative dismissals

  • Pornhub breaches privacy

  • Lawyers get called out for lack of decorum

CHARTER

Religious symbols ban survives another round

Woman in a religious head-covering stands outside of a school. She looks upset.

Yesterday, the Quebec Court of Appeal upheld virtually all of the province’s ban on public officials wearing religious symbols. For many prospective public servants, including teachers, that leaves a difficult choice between changing careers, changing provinces, or changing religions.

If the parties appeal, the Supreme Court will have the opportunity many have been waiting for — a chance to reconsider how much room the notwithstanding clause leaves for the courts.

How we got here: Quebec’s 2019 Act respecting the laicity of the State says public officials can’t wear religious symbols at work (including clothing, jewellery, and headwear). The ban is backed by the notwithstanding clause, shielding the law from challenges based on sections 2-7 or 15 of the Charter.

The government says it wants to maintain a secular state — one without public servants advertising their religion. But the law also effectively prevents members of certain religions from working in the public service.

The lower court found two Charter violations the notwithstanding clause can’t override. Justice Blanchard of Quebec’s Superior Court said the law limits hiring options for English schools, violating the minority language education rights in section 23 of the Charter. He also said the law effectively makes certain people unqualified to serve as members of Quebec’s legislative assembly, violating the electoral rights in section 3 of the Charter.

So, Justice Blanchard struck down portions of the legislation that applied to English schools and provincial politicians. But he wasn’t willing to declare that the legislation violates sections of the Charter the notwithstanding clause does cover. He said he had the power to make that sort of declaration but shouldn’t use it.

The Court of Appeal didn’t go as far. The Court of Appeal said the law doesn’t violate section 23 of the Charter, because hiring diverse teachers has nothing to do with language rights — English school boards don’t have a constitutionally-protected right to hire who they want. The Court also disagreed that courts have the power to consider Charter violations despite the notwithstanding clause. The Court was firmer than Justice Blanchard, saying that the notwithstanding clause completely blocks judicial review.

But the Court did agree with the rest of Justice Blanchard’s decision, including his carveout for politicians — Quebec’s religious symbols ban violates the Charter by making members of certain religious groups ineligible for election to the province’s legislative assembly.

What’s next: There’s a decent chance one of the parties will try to appeal the decision. And given the recent popularity of the notwithstanding clause, there’s a good chance the Supreme Court would grant leave to hear the appeal.

If an appeal happens, you can anticipate the federal government getting involved. Justice Minister Arif Virani said Canada will intervene at the Supreme Court to challenge Quebec’s use of the notwithstanding clause.

As we have stated before, our government has serious concerns with the pre-emptive use of the Notwithstanding Clause, section 33 of the Charter. The first word should not be the last in the dialogue between legislatures and the courts.

Digging deeper: If you want more information on this decision and don’t want to read all 700 paragraphs, the Court has a great summary available in both English and French.

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HEARSAY ROUNDUP

Canadiana

🧑‍⚖️ Justice Minister Virani announced a whopping five judicial appointments in British Columbia this week. As long as no one elected supernumerary status or retired this month, that brings the province’s 13 vacancies down to 8. And that means British Columbia no longer holds the title for the jurisdiction with the worst judicial vacancy rate. Stay tuned next week for an update on the vacancy situation across the country (which seems to have improved significantly this month).

🔎 Canada’s Privacy Commissioner says Pornhub broke the law by sharing intimate images without the knowledge or consent of the people depicted in those images. The Commissioner made several recommendations, including that Pornhub simplify its takedown processes and delete any content depicting someone who hasn’t given their consent.

⏳ Ontario is going back to automatically dismissing civil claims for delay. The courts haven’t been issuing administrative dismissals since the onset of the pandemic, but that changes on May 13.

📃 Nova Scotia’s Public Prosecution Service adopted a new policy dealing with the fair treatment of Black Nova Scotians in the criminal justice system.

💧 The Competition Tribunal wrapped up a two-day hearing against Cineplex over alleged drip pricing. The Competition Commissioner alleges Cineplex advertises unattainable prices by hiding extra fees from moviegoers when they purchase their tickets online. Cineplex is also facing two class actions for the same alleged conduct. The company has made almost $40 million from the disputed fees since launching them in 2022 — take that, Netflix.

🔋 Alberta announced new rules for renewable projects, which take effect today. The rules focus on protecting agricultural lands and “pristine viewscapes”, limiting the placement of wind turbines and solar panels. Some are concerned the rules will prohibit projects in the places they are most likely to generate electricity.

QUOTABLE

For the second time in this newsletter’s history, Justice Charles Chang is making an appearance with some harsh criticism for counsel. Here’s his take on maintaining a poker face in court:

During the application hearing, counsel for the applicant somehow decided that it was appropriate during opposing counsel’s submissions to express themselves by way of, among other things, eye rolling, head shaking, grunting, snickering, guffawing and loud muttering. This behaviour culminated in one of them leaning back in his chair, throwing both hands in the air and laughing in a gleeful moment of triumph during a particularly engaging exchange between opposing counsel and the bench…

The type of misconduct demonstrated by the applicant’s counsel in the case-at-bar significantly delays the timely and effective administration of justice, exacts an unnecessary and unacceptable additional cost on litigants and erodes the public’s respect for the legal profession and, more importantly, for the rule of law. The parties, counsel, other justice participants, the public and the administration of justice deserve far better than what too many counsel seem to have to offer.

Whether the culprit is a lack of proper mentoring, an overconsumption of courtroom television shows, extended periods of time without in-person human interaction or something else entirely, a fundamental shift in mindset is required to stem this tide.

2024 ONSC 608, paras 20-27
Dylan Gibbs

That’s all for today.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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