Urban planning and group and collective rights in Québec, Canada

ABSTRACT

Group and collective rights are human rights, but such rights emerge when the members of a group are discriminated against in order to protect the group temporarily or in perpetuity, depending on how long the discrimination lasts. Studies investigating urban issues from the lens of a group right or collective right are almost non-existent. Using Kymlicka’s rights framework and relying on empirical work in the French-speaking Quebec province in Canada, the research concludes that Québec municipalities are fraught with tensions between individual and group rights and collective rights, resulting in issues related to places of worship, land development and commercial signage.

KEYWORDS:

• Human rights
• cities
• Québec
• Canada

Introduction

Individual human beings are entitled to human rights according to many of the great liberal theorists, such as Locke, Kant, Mills, and Rawls. Certainly, the individual is the moral building block of the United Nations’ Universal Declaration of Human Rights¹ as well as the rights articulated in most liberal democratic constitutions, including those in Canada and the United States. However, liberal states privilege the principle of majority rule, which affirms and foregrounds hegemonic culture; this, in turn, results in the coercive integration of minority groups into the larger, dominant society. These minority groups have been pushing against this influence, generating new tensions and conflicts (Freeman, 1995; Kymlicka, 1995). As such, the focus on the notion of rights grounded in the individual gives way to group and collective rights (Kymlicka, 1995; Jones, 1999; Miller, 2002). Notably, this particular term denotes that a right belongs to a group – rather than to just an individual human being. Of course, individual members of the group still maintain their individual rights, such as the right to a fair trial, due process, and voting.

A unique domain of human rights concerns lies within land-use policies and bylaws, which are increasingly being contested in Canada on human rights grounds. Literature does exist about how individual human rights affect municipal matters (Agrawal, 2014, 2017, 2020, 2022), but studies investigating urban issues through the lens of a group right or a collective right are almost non-existent. Importantly, these issues are on the rise in Canadian cities (Agrawal, 2020). Therefore, this present study seeks to understand the role that group and collective forms of rights play at the city level by seeking answers to two key questions: Which urban issues arise because of the interplay between the three types of human rights – individual, group, and collective? How do municipalities respond to these issues?

Québec, a predominantly French-speaking province in Eastern Canada, is also home to non-French-speaking residents (henceforth, Anglophones). As well, this region includes a diverse array of ethnic, religious, and Indigenous groups, providing an excellent backdrop to answer these two questions. The study relies on existing legal and political discourses and a select set of case law, augmented by interviews with nine key informants who are municipal planners or human rights lawyers in public and private practice in Québec.²

As a quick overview, a ‘group right’ emerges when the members of a group are discriminated against. This right is intended to protect the group when such discrimination becomes apparent and is underway. Examples of such groups are the disabled, and religious or racialized groups. A ‘collective right,’ on the other hand, is stronger than a group right and is permanent because it continues beyond the end of the discrimination against the group, such as the French-speaking people of Québec (henceforth, Québécois)

I begin below by delving further into the meaning of group and collective rights and then identify the specific sections of the Canadian Charter of Rights and Freedoms (henceforth, the Canadian Charter or Charter),³ the Québec Charter of Rights and Freedoms (henceforth, the Québec Charter),⁴ and the Constitution Act 1982⁵ (henceforth, Constitution) – where these rights are codified. I describe the history of human rights in Québec and how it evolved differently over the years from the rest of Canada, based on the province’s political, social, and cultural uniqueness within the country. I then review multiple case examples to link urban issues – such as religious practice, commercial signs, and development on or adjacent to Indigenous land – to the relevant sections of the Canadian Charter, the Québec Charter, and the Constitution, thereby illustrating their impacts at the municipal level. I wrap up by concluding that several rights tensions have led to widespread discord in Québec. Moreover, Québec municipalities are struggling to handle the demands of the Indigenous, ethnic, and religious minorities living among them, which represent group or collective rights, as demonstrated in multiple lawsuits, particularly, in the post-Charter era.

Theoretical background

Debate exists in the scholarly community about whether group and collective rights are human rights: for instance, Kymlicka (1995), Freeman (1995), and Green (1991) argue for this view, but Miller (2002), Donnelly (2013) and Ramcharan (1993) argue against it. Regardless, many liberal scholars (Appiah, 1994; Taylor, 1994) and the Canadian courts largely follow Kymlicka’s rights framework, which pivots around culture and identity to ground the rights claims (Dick, 2009). I similarly adhere to this model. But first, unpacking the delineations between group rights and collective rights will provide solid ground against which to pursue this investigation. For Kymlicka, culture encapsulates shared languages, memories, histories, and values, embodied in common institutions and practices. Culture also shapes individual identity by providing citizens with a sense of belonging, emotional security, personal strength, and a sense of agency.

The interests and experiences of those who jointly hold particular individual rights combine in complex ways to shape group identity, and, in turn, group and collective rights (Jones, 1999). These groups could include, for example, communities who require rights protection, those who have experienced oppression or discrimination, or those who have been adversely affected by state action, inaction, or decisions (Miller, 2002). A true group is founded on certain factors distinguishing it from an unremarkable category of people (Miller, 2002), such as physical features (ability, race) or shared beliefs (religion). Thus, self-perception as a group, or a group’s perception as being a group by the surrounding community are two aspects that participate in shaping individuals into designated groups (Lerner, 1992).

For group rights or collective rights to emerge, three conditions must be met (Jones, 1999; Miller, 2002):

1. All members of the group should enjoy the same rights.

2. All members must collectively value the continued existence of their group, which means that granting them a group right will help preserve the group.

3. Shared interests supersede that of any one group member’s individual concerns, which sufficiently justifies imposing duties on group members.

Several scholars (Glazer, 1978; Walzer, 1982; Kymlicka, 1995) also assert that it matters whether the state considers that the group will (a) remain a permanent and distinct society, or (b) become integrated into or be assimilated by the larger society. The first condition must be true for a group to attain collective rights, while the second condition must hold up to attain group rights.

Group rights

In the Canadian Charter, groups are enumerated – such as the disabled, religious, and racialized groups. However, such groups can only claim group rights if they continue to be discriminated against (Sanders, 1991); when this discrimination has waned, their rights cause could come to an end, which results in a marked constraint of such rights. Several legal cases demonstrate enumerated groups, such as Alberta v Hutterian Brethren (2009),⁶ Law Society of British Columbia v Trinity Western (2018),⁷ and Withler v Canada (2011).⁸

In opposition to Lerner’s (1992) and Ramcharan’s (1993) contention that the term group lacks precise legal meaning, the Charter also creates the space to add groups not listed, via wording acknowledging that a previously unidentified group may require protection because it is ‘disadvantaged in the social, political, legal, penal and rehabilitative sense.’⁹ This need constitutes analogous grounds, which are additional prohibited grounds, similar to the enumerated grounds of extant, identified groups. The courts must take responsibility for adding these analogous grounds as needed, on a case-by-case basis. To date, Canadian courts have identified sexual orientation, marital status, and non-citizenship as analogous grounds of discrimination. In other words, the courts have recognized the constitutional rights of the group of people who are in same-sex relationships, those who have a particular marital status, or those who do not hold Canadian citizenship.

Kymlicka’s (1995) rights framework conforms to this view. He supports ethnic group demands being exempted from existing laws and regulations that disadvantage them; nevertheless, because this only calls for accommodations to existing institutions still serving the majority, he argues that these are weak rights when compared to collective rights. Two Canadian examples of these group rights are the following: (a) Orthodox Jews who ask for allowance to erect an eruv – a thin strand of the wire during their Sabbath – in a public space, and (b) Sikh men who wear a turban and seek exemption from the motor vehicle law that requires riders to wear motorcycle helmets. These two group rights have been granted by the courts.¹⁰

Collective rights

In contrast to the group rights described above, collective rights are rooted in the inherent concerns and aims of a ‘collectivity’ (Sanders, 1991, p. 369), one seeking to end discrimination against its members. These individuals are connected not only through their common experiences of discrimination but also through their shared cultural, religious, or linguistic identities or heritage. This type of right is claimed only when the right is born by the group qua (as) the group (Chandra, 2017). In Canada, this description references the Indigenous peoples and French Canadians (the Québécois); in the US, American Indians and Puerto Ricans fit within this parameter. ‘Group survival’ (Sanders, 1991, p. 370) is a crucial target of collective rights, which extends well beyond mere access to equality for individual members.

Kymlicka (1995) views these collectivities as ‘national minorities,’ which gives credence to their collective rights and sets them apart from simply ethnic minorities who may seek or achieve the group rights discussed above. He argues, in particular, that Indigenous peoples and Québécois were two communities with institutionally complete societies prior to their incorporation into British North America (Kymlicka, 1995, 1998). He takes this further, positing that the liberal state is thus obligated to shelter these national minorities from majority decisions, achieved through the external protections offered by collective rights. Moreover, to bolster group solidarity or cultural purity, some liberties of individual members of these minority groups may be reasonably curtailed as part of internal protections. An example here would be to compel individual members to speak one language, follow a set of customs, or live in a particular location.

As noted, two recognized national minorities in Canada are (a) Indigenous peoples, based on their need to preserve their culture,¹¹ and (b) French-Canadian Québécois, based on the need to preserve their French language and culture.¹² The Canadian Charter and the Constitution both affirm their inherent and permanent collective rights, which exceed rights provided to other groups. This stance grants them greater autonomy and decision-making powers in several areas of social, economic, and political life, freeing them from national state interference. For instance, the Indigenous peoples of Canada have the inherent right of self-government, leading to the devolution of political power for these groups over their historical territory, including governance, social and economic development, education, health, lands, and taxation powers. The Province of Québec has extensive jurisdiction over matters crucial to the survival of the French language and culture, such as education, language, culture, and immigration (Kymlicka, 1995).

The Canadian Charter and the constitution: group and collective rights

The courts have confirmed group and collective rights, entrenched in several sections of the Charter, from which they have also derived new analogous ones. These sections are as follows:

• Section 1: According to several legal scholars and political scientists (Monahan, 1987; Elkins, 1989; Hiebert, 1996; Richez, 2010), by imposing meaningful limitations, this section supports collective goals that help all Canadians, even if this means they sometimes take precedence over individual rights in certain instances. Specifically, the section mandates that rights and freedoms are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ The values and principles the courts employ in deciding s. 1 cases include the inherent dignity of the human person, accommodation for a wide variety of beliefs, and respect for cultural and group identity, among others.

  The American Freedom Defence Initiative v Edmonton ¹³ is one such case, illuminating that even if the right to freedom of expression is an entrenched Charter right, it is not limitless. Recently, an Alberta court upheld the City of Edmonton’s decision on section 1 grounds to remove an advertisement from its public transit buses that made explicit reference to the so-called honour killings of Muslim girls. It argued that removing the ad, which targeted for public ridicule of the Muslim population and Muslim/Islamic faith in general, served the collective interest and moral value of all Canadians.

• Section 2: This component includes freedoms for individuals and groups—in particular, the freedoms of religion, expression, assembly, and association. The courts have interpreted this section in a manner that protects the freedoms of religious minorities or vulnerable groups, which works to ameliorate persistent rights imbalances in society. Furthermore, the Supreme Court of Canada (SCC) makes clear that s. 2[d], especially, is intended to allow ‘the achievement of individual potential through interpersonal relationships and collective action.’¹⁴ Using this idea, the courts have upheld the right to collective bargaining, equal recognition of a religious minority, and the freedom of the press, thereby essentially creating and upholding group rights.¹⁵

• Section 15: This portion of the Charter guarantees equality rights for both individuals and groups. Of note, the court clarified that ‘the concept of equality [under s. 15] does not necessarily mean identical treatment and that the formal “like treatment” model of discrimination may in fact produce inequality [to the individual or the group].’¹⁶ The section applies to government action in the form of legislation, regulations, directions, policies, programs, activities, and the actions of government agents carried out under lawful authority. It enumerates a list of prohibited grounds of discrimination. As mentioned earlier, the SCC has added several grounds analogous to those enumerated in the section.

• Section 23: This section of the Charter protects Québécois French-language rights. The general purpose of s. 23 is clear: It is to preserve and promote the two official languages of Canada—English and French—and their respective cultures, by ensuring each language flourishes, as far as possible, in provinces where it is not spoken by most of the population. The section aims to achieve this goal by granting minority language educational rights to minority language parents throughout Canada, including Québec, where Québécois are in the majority and Anglophones are in minority.

  Simply put, this section requires provincial and territorial governments to provide education to Canadians in the official language of their choice, even where a minority of residents speaks that language. In nine of the 10 provinces and in the three territories, even though the official language of the majority is English, Canadian citizens have the right to have their children educated in French. In Québec, the language of the majority is French, but Anglophones have the right to have their children educated in English there if they so choose. Mahe v Alberta decision¹⁷ extended the meaning of language to encompass its intrinsic participation in the identity and culture of the people speaking it. As I explain in a later example, we will notice how Québec implemented laws, including mandating French language–only signage (and the debates around them) in the spirit of maintaining their distinct cultural identity.

• Section 25: This section, along with s. 35 of the Constitution, recognizes and affirms the existing Indigenous and treaty rights of the Indigenous peoples of Canada. It is noteworthy that s. 25 does not create rights; rather, it acknowledges and preserves the Indigenous and treaty rights already included in the Constitution at s. 35. Thus, it ensures no other provision of the Charter can take away or supersede those rights.

• Section 33: Based on this ‘notwithstanding clause,’ provincial governments are entitled to override s. 2 and ss. 7 to 15 of the Charter for a period of up to five years, if this helps to serve the unique needs of their particular communities, such as preserving a language, culture, or values. Invoking this section allows a provincial legislature to avoid the question of whether its act is constitutional or not (Weinrib, 1990). Rather, it concedes that the enacted legislation is a justifiable ‘exception’ to the rights guaranteed by the Charter: it is acting out of the belief that this is the right thing to do to preserve the collective distinction of its constituents.

Indigenous rights

With colonial settlement, English common law largely supplanted pre-existing legal systems of Indigenous communities. Against this background, the SCC has defined the meaning and scope of Aboriginal rights in several decisions. In Van der Peet,¹⁸ Chief Justice Lamer clearly acknowledged in his majority judgment that he was picking up where R v Sparrow left off¹⁹; in particular, he pointed out that the Aboriginal rights are fundamentally derived from Aboriginal peoples’ prior occupation of the land and their prior social organization and distinctive cultures.

Multiple times the courts have upheld that the collective rights of Indigenous peoples to self-determination are constitutionally affirmed. Litigation, negotiations, and title claims are ongoing – but the nature and implementation of self-determination continually evolves between various Indigenous groups and the federal government. While the federal government recognizes this principle, so far only a few cases have been resolved, such as the Nunavut and Tłı̨chǫ land claims and self-government agreements. Haida,²⁰ Rio Tinto,²¹ and other cases have affirmed the federal and provincial governments’ “duty to consult” with the Indigenous people of a region when the Crown’s activities could have an adverse impact on Aboriginal and treaty rights. The role of municipalities, however, remains unclear in tackling the Crown’s duty to consult.

French-Canadian Québecois rights

As noted, s. 23 of the Canadian Charter protects Québécois’ French-language rights. In the Mahe v Alberta decision,²² Chief Justice Dickson, on behalf of all the presiding judges, pointed out that this section of the Charter is intended to ensure the continued presence and health of both English and French across Canada. Ensuring minority educational language rights is essential to this aim, with the understanding that language is grounded in and participates in cultural identity.

Also, as mentioned above, s. 33 of the Charter makes it possible for provincial governments to override s. 2 and ss. 7 to 15 of the Charter for up to five years, through the ‘notwithstanding clause.’ S. 52 of the province’s own Charter of Human Rights and Freedoms²³ offers a similar provision, in that its legislature can abrogate other sections of that Charter, primarily when ‘society and State imperatives outweigh individual needs’ (Rousseau & Côté, 2017, p. 374). By invoking the notwithstanding clause, Québec prioritizes the collective interests (droits collectifs) of all Québécois over the interests of individual Québécois citizens (Rousseau & Côté, 2017).

Such moves are perhaps the only avenue for Québec to maintain its status as a ‘distinct society’ since it is not designated as such in the Constitution (Gosselin, 1991). This may account for why this province has invoked the Canadian Charter notwithstanding clause more than other provinces—61 times, in fact, compared to just three times in the rest of Canada between 1982 and 2017 (Rousseau & Côté, 2017). The province also referenced the notwithstanding clause in the Québec Charter 45 times. Some scholars suggest that this tendency increases the potential for individual human rights violations in Québec (Kahana, 2005–2006; Rousseau & Côté, 2017).

History of human rights legislation in Québec

Québec, a predominantly French-speaking province, is one of the largest provinces in Canada by both area and population; it also holds a unique place in Canadian history. Further, human rights in Québec have been influenced by its political history: the Duplessis years to the Quiet Revolution and the October Crisis, to more current federal and provincial discord, and the recent adoption of the contentious Bill 21 (An Act Respecting the Laicity of the State)²⁴ that bars public servants from wearing religious symbols.

According to a historical sociologist, Clément (2016), the period in the mid-20^th century in Québec is known as the ‘Le Grande Noiceur’ (the great darkness) under the rule of Premier Duplessis, who did not believe in anti-discrimination legislation. His actions generated intense criticism and contributed to the creation of the first civil liberties groups in the country. For example, Duplessis is responsible for the legislation An Act Respecting Communist Propaganda (‘The Padlock Act’) of 1941,²⁵ which made it illegal to print or publish any papers promoting communism. The act did not define what ‘communism’ meant, allowing Duplessis to abuse the act, using it against trade unions and religious groups, such as Jehovah’s Witnesses and their supporters. In response, a branch of the Canadian Civil Liberties Union was formed, one of the first rights associations in Canada (Clément, 2008).

In the 1960s, Québec experienced a ‘Quiet Revolution’ after the Liberal Party defeated Duplessis, marked by economic and social modernization that included the rise of secularism (Clément, 2008). As Clément’s (2008) history of this era documents, the Ligue des droits et libertés (LDL; League of Rights and Freedoms) was founded in 1963, partly to get a bill of rights for Québec passed. The LDL was instrumental in the province’s undertaking of a report on the state of provincial penal and criminal matters, which became one of the most comprehensive analyses ever undertaken of a provincial justice system and of prisoners’ rights. The LDL envisioned a provincial rights bill encompassing economic and social rights; indeed, the group undertook a provincial campaign to help convince the government to pass such a bill. In the late 1960s, other Canadian provinces were also pursuing such legislation.

The October Crisis and the invocation of the War Measures Act²⁶ also influenced human rights in the province. In 1970, this act was invoked in response to actions of the Front de Libération du Québec, a leftist separatist guerilla group that spent the 1960s pursuing an independent Québec through violence – namely, the kidnapping of two government officials. While it was in effect, rights were suspended, allowing for mass arrests and detainment of individuals for indefinite periods, many of whom were denied due process. As Clément (2008) notes, the October Crisis ‘motivated concerned individuals to form ad hoc civil liberties associations’ (p. 110).

As Clément (2016) further details, in the early 1970s, the LDL began to embrace a more inclusive human rights platform, moving beyond civil liberties to include economic and social rights focused on the needs of the poor, women, the elderly, young people, and minorities. In 1975, the Québec Charter of Human Rights and Freedoms was passed, coming into effect in 1976 along with a human rights commission. Together, these entities set a new rights standard, prohibiting discrimination on the basis of language, political opinion, social condition, and employment equity. In 1977, it was the first province to add sexual orientation to its protected grounds; Alberta and a few Atlantic provinces took another two decades to add this category.

During the 1970s, Québec’s independence movement also began to mature and the Parti Québécois emerged, which advocated for the national sovereignty of Québec (Clément, 2008). In the ensuing years, the Québécois people debated the question of Québec sovereignty and its relationship with the rest of Canada. In 1982, for instance, Québec refused to sign the Canadian Constitution, due mainly to two key factors: (1) the Parti Québécois was in power, and (2) the recently defeated Québec provincial referendum of 1980 (the first referendum in the province) aimed at revising the province’s relationship with Canada by obtaining political sovereignty but maintaining economic association (Howard, 1991). Subsequent accords to bring Québec into the Constitution have since failed (the Meech Lake Accord and the Charlottetown Accord both sought to declare Québec a ‘distinct’ society, but this was deemed insufficient). Of note, the Province of Québec never formally ratified the Constitution. However, the Supreme Court concluded that Québec’s formal consent was not necessary.²⁷ In 1995, Québec underwent a second separatist referendum, which was again defeated. Québec’s more frequent use than the rest of Canada of the Charter’s notwithstanding clause (Rousseau & Côté, 2017) is under the pretext of maintaining its distinctness.

Method

I collected 17 relevant pieces of case law from CanLII, an open-access online database run by the Canadian Legal Information Institute, and 25 pieces of media and news articles through a Google search. I also conducted nine interviews with municipal planners and prominent human rights lawyers in public and private practice. The cases were selected because they (a) were based on their relevance to municipal bylaws, (b) were brought forward due to alleged human rights violations, or (c) are ones that have significantly affected the protection of human rights.

Much of the literature and case law were published in French, which was challenging as I am not a French speaker. Hence, over the years of this study I hired and relied on multiple research assistants who are French/English bilingual. They took the lead in interviewing key informants and translating the interviews from French to English. CanLII allowed the translation from French to English using the Chrome browser’s built-in translator. Fortunately, the translated material was near perfect. Print news articles were mostly in English, but those in French were easily translatable using the Chrome translate function.

Findings

The findings in this section are bundled into three broad themes – or tensions – each illustrated with a representative example, as follows:

• Between group and collective rights holders: as demonstrated in municipalities’ attempts to suppress religious expressions of minorities to favour the dominant collective rights of Québécois.

• Between two groups, each with their own collective rights: as shown in municipal struggles with Indigenous peoples’ collective right to be consulted and the recognition of historical Indigenous treaties against the collective rights of Québécois.

• Between the collective rights and individual rights holders: as evident in the collective rights of Québécois over individual rights of minority Anglophones living in Québec (even while they are the majority in the rest of the country).

Group vs. collective rights holders: suppressing religious expressions

The issue of siting places of worship was mentioned on numerous occasions during the interviews with the study participants as instances of how municipalities used collective rights of Québécois as a way to deny the rights of multiple religious groups, such as Muslims, Jehovah’s Witnesses, and Orthodox Jews. One interviewee, a human rights lawyer, observed that whenever the Charter gets invoked in public law issues relating to municipalities, it is mostly about religious freedoms – but such complaints are usually viewed as a nuisance. He connects this to Québec’s Catholic, collectivist roots; within that frame of reference, Charter rights cases, particularly as ruled on in other provinces, are viewed as instances of ‘extreme individualism,’ getting in the way of Québec’s efforts to preserve Québécois language and culture.

The prohibitions on building places of worship in certain places and wearing religious symbols hinge on a public ethos of secularism. The role of religious symbols in civic affairs, especially those portrayed in democratic institutions, emerged in a number of other controversies: namely, the hanging of a crucifix in Montréal’s Council Chamber (CBC, 2019) and in the Province’s National Assembly chamber, as well as holding a prayer before municipal meetings (Kwong, 2015).

Another respondent, a municipal official, confirmed her office receives complaints about religious freedoms, regarding both too many and too few restrictions. Some residents complained that too many municipal restrictions prohibited them from locating their places of worship, while others complained about too many religious sites and their negative impacts on nearby residents. One other respondent, a municipal planner, agreed with the latter view, but did not see as much clear violation of religious freedom through policies or zoning bylaw; rather, this respondent noted issues arise related to managing the impacts of worship practices on neighbouring residents. For example, conflict arises when a group seeks to situate a place of worship in a residential area, and both sides are unwilling to compromise and thus find a mutually agreeable solution to mitigate factors like parking and noise.

Numerous news articles have covered the rising tensions between the Hasidic Jewish community and the borough of Outremont in Montréal. The conflict began when the borough passed a zoning bylaw banning new places of worship on a particular avenue (Hamilton, 2017). The Hasidic Jewish community felt their freedom of religion was being targeted. After passing the bylaw, the borough allowed residents to vote on the matter, with the majority favouring the bylaw (Curtis, 2016). The print media extensively covered other instances where municipalities used zoning restrictions to hinder establishing places of worship, particularly mosques (Hamilton, 2017). For example, in 2015, a mosque in Shawinigan was denied a permit to open in an industrial zone. Subsequently the mosque found a new home in an area zoned for religious activities (CBC, 2015).

The case law on this matter provides a glimpse into the challenges of different religious groups to find sites for their places of worship or practice their religion in public spaces. The following three cases highlight these issues.

Case 1

In Ville de Montréal c Centre Islamique Badr,²⁸ the City of Montréal filed an action against Centre Islamique Badr, a charitable organization centred on the practice of the Muslim religion. The action ordered the group to stop using its property in non-compliance of the zoning bylaw, which prohibited the holding of religious ceremonies on the subject property, which the centre occupied in 2004. Same year, the city amended the zoning bylaw, replacing ‘religious organization’ with ‘administrative and local office for teaching and promoting the activities of a religious organization (without assembly or religious ceremony).’²⁹ Almost after four years of delay, in 2008, the city processed the development permit application but unilaterally changed the centre’s application, adding the words ‘without ceremony.’

The bylaw put the centre’s land use into non-compliance, even though it was originally in compliance. The issue was whether the city could enforce the bylaw change four years later, and thereby render the centre unable to operate. The court held the city had acted in bad faith and dismissed the city’s action. It further found the centre’s right to religious activities had been acquired in 2004, so it would be wrong to stop these activities now. The judge also directed that any law restricting or infringing on the Canadian Charter should be interpreted narrowly.

Case 2

The background to this case, Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village),³⁰ is that in 1992 the Jehovah’s Witnesses, a religious group, sought a parcel of land in the Village of Lafontaine, Québec, to establish a place of worship. The municipality’s zoning bylaw allowed places of worship in ‘regional community’ use zones. Because no suitable land was available for sale in this zone, the group bought land in a commercial use zone. They applied twice for a zoning change, but the municipality refused to grant either application, giving no reasons for its refusal, while also invoking absolute discretion to refuse the variance with no explanation.

In their application to the court, the Jehovah’s Witnesses alleged that the municipality’s refusal to amend its zoning bylaw violated their freedom of religion under s. 2(a) of the Charter. The trial judge at the Superior Court of Québec dismissed the application after finding parcels were still available in the regional community zone. The Court of Appeal disagreed with this finding of fact, but the majority nonetheless dismissed the appeal on the grounds that the municipality could not be held responsible for the unavailability of land or to preserve freedom of religion. In 2004, the SCC sided with the Jehovah’s Witnesses and allowed their appeal, stating the municipality acted in bad faith and did infringe upon the appellants’ freedom of religion. This excerpt from the majority’s decision is revealing:

In refusing to justify its decision to deny the second and third applications for zoning variances, the Municipality breached the duty of procedural fairness it owed to the Congregation—a duty heightened by the expectations established by the Municipality’s own conduct and the importance of the decision to the Congregation, impacting as it did on the right of the Congregation to practise the religion of its choice. (p. 652)

Case 3

Rosenberg et al. v Outremont (City)³¹ is widely known as the ‘eruv decision.’ The court held that the Charter protection of religion requires a municipality to accommodate religious practices. The city had removed an eruv—the wires strung between buildings allowing Orthodox Jews to leave their homes on the Sabbath. The court stated that the city needed to leave the eruv in place as Outremont’s Hasidic community was within its constitutional right to set up this symbolic wire. Rosenberg demonstrates the court’s use of s. 2(a) of the Charter (freedom of religion)³² to uphold religious accommodation for a religious minority group, a right also supported by the Québec Charter. The court reasoned the city did not exercise its proper authority, because ‘the City has a constitutional duty to provide accommodation for religious practices that do not impose undue hardship on its residents.’³³

In a few other cases, however, the court determined some limitations on religious freedom were valid and upheld the zoning bylaw. For example, in Église Essénienne Chrétienne c Ville De Cookshire-Eaton,³⁴ a bylaw permitting agricultural uses only was upheld by the court, rejecting a religious organization’s claims that it infringed on its s. 2 Charter rights. In another similar case, the court upheld a municipal zoning bylaw disallowing religious assembly, stating, ‘To allow, under cover of freedom of religion, the installation of places of worship everywhere on the territory according to the location of particular poles of attractions would go against the public interest’(Ville de Mont-Tremblant c L’Organisation pour la jeunesse Chabad Loubavitch).³⁵ The key difference with both these cases compared to those discussed earlier is that the religious groups had other available options where they could locate themselves within the municipalities.

One study participant, a human rights lawyer, explained the reasons for the multiple, and more frequent, lawsuits related to religious minorities in Québec, compared to elsewhere in the country. Specifically, he highlighted that collective rights, under the guise of secularism, tend to prevail over individual or minority group rights, stating the following:

The [Canadian] Charter is not particularly popular in Québec, apart from gender equality or disability issues. But when it comes to freedom of expression—hijab, religious signs—that’s not very popular. [Also not popular is] the right to wear [religious] signs, or religious exemptions … to have festivals or to have temples or churches or whatever. They [Québécois] try to avoid having them built.

He extended his argument further, adding the following comment concerned with Québec traditionally being different from other provinces, including its quest to protect its unique identity:

[Although] no one has said that [they would] ever say they’re anti-[Canadian] Charter. What you’ll hear…whether in a municipal context or any other [is], ‘There are limits.’ Of course, there are limits, everywhere there are limits, but in Québec, the limits come first.

Collective right vs. Collective right: development on or adjacent to Indigenous land

Several respondents mentioned planners and developers tend to overlook Indigenous sacred spaces, resulting in the rise of conflicts between Indigenous collective rights and Québécois’ collective rights. This clash of rights is highly evident in the ongoing issue of Indigenous land claims and burial spaces in the long-disputed area surrounding the municipality of Oka (Scott & Curtis, 2020). The issue has simmered for centuries but flared up in 1990 with the ‘Oka Crisis’ – or Kanehsatà:ke Resistance – as it came to be known. This was a 78-day standoff between Indigenous protestors, the Québec police, and the Canadian military.

The crisis was sparked by a decision of the municipality of Oka to allow the expansion of a golf course on disputed Indigenous land, an outcome informed by a Québec court decision³⁶ allowing this. The land, although not classified as part of a reserve, was acquired by the Crown in 1945 from the original owners, the Sulpicians, whose title has been contested by the Kanehsatà:ke Band since the 19^th century.

The land is located within the Municipality of Oka, although it was and is under the possession of the Mohawks of Kanehsatà:ke. The Band took issue with the municipality’s decision. They had not been consulted – but more, an unresolved land claim was ongoing (explained later in the section), which included the golf course expansion area. They blocked a key road leading to the site, and the tension escalated when the then-mayor of Oka ordered the Province of Québec’s military to intervene. This further galvanized the standoff, culminating in violence and deaths on both sides. The deteriorating situation forced the federal government to call in the Canadian Army. Finally, the federal government agreed to purchase the contested land from the developers and the municipality of Oka to prevent further development, a key demand of the Mohawks.

Several additional factors fuelled the situation: (1) the tensions between Anglophone and Québécois complicating public sentiment vis-à-vis the Kanehsatà:ke Resistance; (2) a radio host who exacerbated tensions with comments like the ‘Mohawks couldn’t even speak French’; and (3) the failed Meech Lake Accord of that summer, which had sought to declare Québec a ‘distinct’ society (York & Pindera, 1999).

In another dispute related to a portion of the land in question as above, in 1987, prior to the Oka crisis, the Municipality of Oka objected to construction without their permission by Jean-Roch Simon, a registered Indian pursuant to the Indian Act and a member of the Mohawks of Kanehsatà:ke. The municipality applied for an injunction to stop construction, which was granted by the Québec court, while the parties awaited the final Québec Superior Court decision³⁷—which eventually ordered the demolition of the building as part of its decision. This decision was upheld by the Québec Court of Appeal,³⁸ which determined the lot was neither a part of the Indian Reserve nor a public property but was nevertheless subject to local construction and zoning bylaws; moreover, the leave to appeal was refused at the SCC.

In the recent years, protests flared up again as another private developer began to build residential structures on a section of Mohawk’s ancestral land in dispute. This parcel of the land is forested and considered sacred to the Mohawks. In 2021, Oka changed the zoning of this parcel to a heritage and conservation zone to prevent any further development. This is not without problems, as the Mohawk Council of Kanehsatà:ke claims authority over the land and states the municipality again did not consult them. Although the band and the municipality agreed with the end goal, the band filed a lawsuit against Oka, arguing that the land was theirs, not the municipality’s (Chavez, 2021). Additionally, the developer of the land threatened legal action against this zoning change (Spector, 2021).

The ongoing crisis in Oka highlights the complexity of Indigenous land claims and municipal ineptness or inability to resolve them. The disputes between the Mohawks of Kanehsatà:ke, the municipality of Oka, and the developer(s) are still alive today, at the heart of which is the struggle for land claims by the Indigenous group. This raises the question of what role a municipality plays in Indigenous land claims and consultation, and reconciling two sets of collective rights – those of Indigenous people and those of the Québécois. The municipal responsibility towards the ‘duty to consult’ is obviously the central, but unexamined, issue here. This aspect adds further complexity to how much authority a municipality can exert, sometimes even within its own jurisdiction, when it adjoins Indigenous land.

One group’s rights vs Individual rights: mandating French-language commercial signs

The case of mandating French-language commercial signs exemplifies the study participants’ contention that the Québec legislature has been asserting the collective values of Québécois over other group and individual rights in the province. In the 1988 case of Ford v Québec (Attorney General),³⁹ the respondents were Anglophone business owners in Montréal who were instructed by the province to serve their customers in French only and replace their bilingual French and English signs with unilingual French ones. They argued that two sections of the Québec Charter of the French Language (58 and 69)⁴⁰ infringed on their s. 2(b) Charter right to freedom of expression. The section 58 of the Québec Charter of the French Language mandated ‘public signs and posters and commercial advertising shall be in the French language only and that only the French version of a firm name may be used.’ The SCC agreed with the respondents – the two sections were in conflict with the specified Charter section, which guarantees a citizen’s right to express oneself in the language of one’s choice.

The case also foregrounds crucial dimensions of collective rights in Québec as they pertain to language rights: (a) the general freedom people have to express themselves in a chosen language – analogous to group rights, vis-à-vis the Charter, s. 2[b]; and (b) actual extant language rights—analogous to collective rights, as per the Charter, s. 23. According to the presiding judge in R v Big M Drug Mart Ltd.,⁴¹ cited in Ford, an important distinction with respect to true freedom is both ‘the absence of coercion or constraint’ and no state compulsion; these aspects work together in the service of freedom, which is a primary aim of the Charter.⁴² However, language rights, as a collective right, demand more pre-emptive and affirmative government action, given their ‘special historical, political and constitutional basis.’⁴³ The court pointed out that language rights mean citizens should be able to expect encounters with and services from the government to be available in either official language.⁴⁴

The court in Ford thus carefully parses group and collective rights, where the latter in Québec are envisaged through language rights, and thereby entrenched via s. 23 of the Canadian Charter, as I described when I first presented the sections of the Charter and the Constitution pertaining to group and collective rights. Since the French language in Québec is threatened – a claim backed by evidence and credited by the court – state action to protect this collective right is justified. Given this, the court stated the provisions in the Québec Charter of the French Language aimed at confronting this thread – are ‘serious and legitimate.’⁴⁵

The SCC, however, took a different view of the application of the Québec Chart of Rights and Freedoms and s. 2 of the Canadian Charter. It maintained that regardless of the need to preserve French in Québec as part of the collective rights of Québécois citizens, infringing on the rights articulated in s. 2(b) of the Charter⁴⁶ and s. 9.1 of the Québec Charter of Rights and Freedoms⁴⁷ were unjustified. The court stated, ‘The defence and enhancement of the status of the French language in Québec’ did not require that non-French languages on commercial signage be prohibited, nor was this intent ‘proportionate to that legislative purpose.’⁴⁸ Consequently, this signage regulation was rejected as unconstitutional. Following the decision, the provincial legislature invoked the notwithstanding clause. A few years later, the language in the Charter of the French Language was amended to align it with the Canadian Charter, by allowing other languages if French predominates on the signs.

Clearly, deciding how to balance various rights – collective, group, and individual – is no easy matter. Which takes precedence, where, and when? The outcome of this judicial case illuminates how controversial some decisions can be. In this case, Québec responded to the ruling by invoking the notwithstanding clause of the Canadian Charter to mandate French-language signs. Additionally, this case sparked outcry and protests in Montréal and other municipalities in Québec against the court ruling, as many Québécois privileged the preservation of French culture and language over the Canadian Charter rights (Endleman, 1995; Martel & Pâquet, 2012; Noël, n.d.). Indeed, Ford has gained some notoriety, going on to inform sign bylaws in several municipalities that impose language requirements on commercial signs. Moreover, it is often cited by Canadian municipalities in litigation pertaining to issues of language, signage, and commercial expression, as in, for example, R v Pinehouse Plaza Pharmacy Ltd,⁴⁹ R v Mader’s Tobacco Store Ltd,⁵⁰ and Canadian Newspapers Co v Victoria (City).⁵¹

Discussion: droits collectifs in Québec

The complicated history of Québec within Canada, compounded by it being an island of French within a sea of English, makes for some interesting legal negotiations between the two entities. Indeed, Québecois politicians often refer to the ‘nation’ of Québec, reflecting ongoing assertions of its unique status. The discourse between the Civil Code of Québec and the Canadian Charter are yet another manifestation of this complex relationship. The origins of the collective rights or ‘droits collectifs’ lie in this Civil Code of Québec,⁵² which evolved from French civil law to represent the jus commune—the law of the land – in Québec. The Civil Code provides the foundation for all laws and regulations in Québec, while also helping to harmonize Québec civil law with the English common law used in the rest of the county. The incongruity between the Civil Code and common law has been cited in several court decisions, with the Québec legal community similarly highlighting such inconsistencies (Samson & Langevin, 2015).

One such decision is Québec (Attorney General) v. A.,⁵³ in which the SCC Chief Justice McLachlin, writing for the majority, concluded that some provisions in the Civil Code of Québec violate the Canadian Charter. However, certain limits on the Charter rights are reasonable because the approach adopted by Québec’s legislature is grounded in the province’s unique history, as well as the distinct nature of Québec society, history, legal system, and values. She noted, ‘The fact that Québec has chosen a different policy than other provinces in keeping with its own history and social values does not make the law unconstitutional.’⁵⁴ Health-related issues are one domain in which the SCC has continued to tackle this tension between the Civil Code and the Charter. For instance, SCC has protected a woman’s right to abortion citing the protection of “privacy” as the key ground. The question of respect for “privacy” has given rise to potentially conflicting decision with regard to the production of confidential records in the possession of third parties, particularly, the disclosure of private records of sexual assault victims. (Lavallée, 2022).

Drawn from the Civil of Code of Quebec is Québec’s Charter of Rights and Freedoms, especially s. 9.1, which explicitly introduces collective elements to the balancing of individual liberties, influencing how cases are decided in Québec courts. The section reads as follows: ‘In exercising his [sic] fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, State laicity, public order and the general well-being of the citizens of Québec.’⁵⁵ The Québec Charter has been invoked often, and in the strictest sense, regarding issues such as language, ethnicity, and religion.

Recently, Québec’s Bill 21⁵⁶ has gone further in asserting the collective rights of the Québécois by banning public officials from wearing religious symbols. The bill also amended the Québec Charter by explicitly adding the state’s laicity⁵⁷ to be of fundamental importance. However, Québec’s recent ‘pre-emptive’ invocation of the notwithstanding clause on Bill 21 was unprecedented. Following Kymlicka’s (1995) conception of rights, Bouchard and Taylor (2008) support the notion of droits collectifs, which can impose some restrictions among the Québécois people. They clarify as follows:

Some people’s rights and freedoms must occasionally be restricted to maintain the full panoply of rights that the State must offer all of its citizens. Individual rights may thus be restricted to allow the State to achieve important collective purposes such as contributing to the common good, ensuring public order, and so on. For example, this is true when the government decides to restrict certain rights to foster the survival and vitality of the French language in Québec. (p. 173)

Québec’s history, legal system, and values, and its ‘distinct society’ characterization – essentially its jus commune—all affect how human rights are viewed in the province. Québécois, as a minority in Canada but a majority in Québec, have benefited the most from the collective form of human rights constitutionally conferred on them. Further, Québec has its own approach to protecting its collective values and identity, which includes its French-language rights (Samson & Langevin, 2015). As Clément (2016) also notes, Québec employs a unique lens for collective rights and self-determination.

Rosenberg⁵⁸ represents the tension between the collective value of a national minority and an ethnoreligious minority and the prevalent unease among the Québécois about their minority status within Canada. In Rosenberg, the borough of Outremont claimed state neutrality or secularism as an assertion of collective values. Howard-Hassmann (2018) noted, ‘if such rigid neutrality makes members of minority groups feel unwanted in their own society, then it might have an effect contrary to the one intended’ (p. 167). Bouchard and Taylor (2008), however, accept that the state can restrict certain individual or ethnic minority group rights to maintain a collective purpose, such as with religious practice. Some liberal theorists posit that when a minority group chooses to limit the liberty of its own individual members, or subreligious or subcultural groups, in the name of maintaining its cultural purity values (Tomuschat, 1983; Abu–Laban & Stasiulis, 1992) – or, in this case, ‘neutrality’ – this may be antithetical to liberal values.

The Rosenberg decision and other court decisions⁵⁹ favouring ethnic minorities led to direct conflict between two minorities – national and local religious. Bouchard and Taylor (2008) attribute the prevailing anxiety and hostility in Québec to the fact that ‘Québecers of French-Canadian ancestry are still not at ease with their twofold status as a majority in Québec and a minority in Canada’ (p. 18). This discomfort was also evident in Québec’s opposition to the SCC ruling in Ford and the support for use of notwithstanding clause.

The Oka Crisis and the ongoing protests that persist even today are testament to the unresolved competing rights of Indigenous peoples and the Québécois. This ongoing tension highlights the issue of a municipality’s responsibility towards the Crown’s duty to consult, the importance of respect for treaty rights, as well as the role played by unresolved treaty rights. Agrawal et al. (2023) illustrate that these issues are not unique to Québec; rather, they are pervasive across Canada. Case law, including Haida⁶⁰ and Rio Tinto⁶¹ and most recently, the Neskonlith⁶² case, settle that municipalities, as non-Crown actors, do not have a role in the Crown’s duty to consult. The legal scholars Imai and Stacey (2014) have criticized Neskonlith, suggesting the decision runs contrary to the duty to consult because it incorrectly treated the duty like Charter rights. In fact, the duty to consult has emanated from the judicial interpretation of s. 35 of the Constitution, a not the Charter.

Flynn (2022), and Hoehn and Stevens (2018) take a similar stance. They turn to the Clyde River⁶³ case, in which the SCC held that the Crown may rely on regulatory bodies – here, the National Energy Board (or NEB), an administrative decision-maker – to satisfy the duty to consult. These scholars contend Clyde River paves the way for a third party, like a municipality, to effectively be considered an arm of the Crown, with the concomitant duty to consult and accommodate.

As discussed earlier, Ford⁶⁴ has frequently been cited to illustrate the deployment of the notwithstanding clause. The heart of that case, and the events following the ruling, show Québec asserting its collective right to preserve its French language, which the province felt was threatened by the majority. The SCC’s decision recognized the importance of language preservation and collective rights in Québec, even though it framed the province’s actions as unjustifiable. Overall, Québec’s legal system, the Québec Charter, and the Canadian Charter have worked together to help preserve Québécois citizens’ collective rights and enforce them at the municipal level. These legal resources mostly function harmoniously in the interest of Canadians’ human rights, although the Canadian Charter predominates (Samson & Langevin, 2015).

As noted, Québec maintains a Civil Code, while the rest of Canada uses common law. Both courts⁶⁵ and legal scholars (like Gaudreault-Desbiens, 1998) argue that human rights and common law conventions are disruptive and threaten to contaminate this civil law tradition in Québec, both methodologically and conceptually. In several cases, the SCC has decisively chosen to enhance the position of the provincial National Assembly and emphasize the autonomy of the civil law based on the distinct nature of Québec society (Lavallée, 2022). The Québec Charter of Human Rights and Freedoms,⁶⁶ further reinforces the collective values of Québécois by recognizing economic and social rights, which helps to inspire ‘solidarity’ (Bouchard & Taylor, 2008).

Lastly, in the rest of Canada, while the Canadian Charter is considered superior to the parliament, in Québec, its National Assembly is the ‘guardian of the collective history, identity and destiny of the people of Québec … [and a] paramount collective power that is essential for social survival and progress in a culturally and demographically vulnerable society’ (Rousseau & Côté, 2017, pp. 410, 408). This is evident in the National Assembly’s swift and potent action to invoke the notwithstanding clause to enact legislation made in the collective interest of the Québec people.

Conclusion

This paper set out to explore how the expression of group and collective rights play out at the city level, focusing on two key questions: Which urban issues arise when multiple forms of human rights intersect? How do municipalities respond to such issues? In Québec municipalities, three tensions have shaped this broad discourse: (a) between group rights of religious minorities and the collective rights of Québécois; (b) the collective rights of Québécois versus those of Indigenous peoples, and (c) collective rights of Québécois against individual rights of Anglophones living in Québec. These conflicts are documented in this research through instances of municipal opposition to the development of ethnic places of worship, inconsistent development approval decisions on contested Indigenous treaty land, and mandating of French-only commercial signs.

This study reveals that Québec municipalities struggle to balance the needs of religious, cultural, and Indigenous groups, as well as those of individual Anglophones, while aiming to satisfy the collective demands of the Québécois. The resulting conflicts are at the heart of growing discord across Québec. The legal complexity of and potential inconsistencies between the Québec Civil Code and Charter, and the Canadian Charter has made situations challenging for the municipalities. The popular, distrustful sentiment of many Québécois regarding the Canadian Charter further complicates municipal efforts to find possible solutions.

I contend that Québec is unique in the Canadian human rights landscape due to its Civil Code, as well as its provincial human rights charter. Both legal frameworks of Québec view human rights as ‘droit collectifs,’ an underscoring of collective rights based on Québécois culture and traditions. When a Québec bill is deemed incongruent with the Canadian Charter, its legislature does not hesitate to invoke the notwithstanding clause of the Constitution. Interestingly, even when SCC acknowledged the inconsistency, it did not necessarily find a bill or the Civil Code unconstitutional. All of this adds further to the already complex legal situation that Québec municipalities must deal with.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

The work was supported by the Social Sciences and Humanities Research Council of Canada [435-2017-0040].

Notes

1. Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 [UDHR].

2. I promised to protect the anonymity of interviewees, so I will not be using their names here.

3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

4. Québec Charter of Human Rights and Freedoms, CQLR c C-12, 1975 [Québec Charter].

5. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution].

6. Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

7. Law Society of British Columbia v Trinity Western University Hutterian, 2018 SCC 32, [2018] 2 SCR 293.

8. Withler v Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396.

9. Alcoholism Foundation of Manitoba v Winnipeg (City), 69 DLR (4th) 697, 1990 CanLII 8022 (MB CA), at 39 [Alcoholism].

10. Dhillon v British Columbia (Ministry of Transportation & Highways), [1999] BCHRTD No 25, Carswell, BC 3191; Rosenberg v Outremont (City), [2001] RJQ 1556, 2001 CanLII 25,087.

11. Constitution, supra note 5, s. 35.

12. Charter, supra note 3, s. 23.

13. American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555.

14. Dunmore v Ontario (Attorney General), 2001 SCC 94 at para 17.

15. Mounted Police Association of Ontario v Canada, 2015 scc 1; Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR; Chamberlain v Surrey School District No. 36, [2002] 4 scr.

16. R v Kapp, 2008 scc 41, at para 15; citing Andrews v Law Society of British Columbia, [1989] 1 SCR 143, at 165, 56 DLR (4th) [Andrews].

17. Mahe v Alberta, [1990] 1 SCR 342 1990, 68 DLR (4th) 69 [Mahe cited to SCR] at paragraph 31.

18. R v Van der Peet, [1996] 2 SCR 507, 137 DLR (4th) 289. [Van der Peet cited to SCR].

19. R v Sparrow, [1990] 1 SCR 1075.

20. Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida].

21. Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto].

22. Mahe v Alberta, [1990] 1 SCR 342 1990, 68 DLR (4th) 69 [Mahe cited to SCR].

23. Supra note 4.

24. Bill 21 (An Act Respecting the Laicity of the State, SQ 2019, c 12) [Bill 21].

25. Act to Protect the Province Against Communistic Propaganda, rsq 1941, c 52 [The Padlock Act].

26. War Measures Act 1914, 1925 CanLII 711.

27. Reference: Objection by Quebec to a Resolution to amend the Constitution [1982] 2 S.C.R. 793.

28. Ville de Montréal c Centre Islamique Badr, 2017 QCCS 57.

29. Ibid at para 22.

30. Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 scc 48.

31. Rosenberg et al. v Outremont (City), 2001 CarswellQue 1312, [2001] QJ NO 2858 [Rosenberg].

32. Supra note 3.

33. Ibid at para 46.

34. Église Essénienne Chrétienne c Ville De Cookshire-Eaton, 2019 QCCS 324.

35. Ville de Mont-Tremblant c L’Organisation pour la jeunesse Chabad Loubavitch, 2017 QCCM 26 at para 273.

36. Oka (Municipalité) c Membres de la bande autochtone ‘Six nations tradition hereditary chiefs’, [1990] CarswellQue 1740, JE 90–1092.

37. Oka (Municipalité) c Simon (C.A.Q), [1991] J.Q. no 1654.

38. Oka (Municipalite) c Simon, 1998 CarswellQue 4718, [1998] JQ no 3678.

39. Ford v Quebec (Attorney General) [1988] 2 SCR 712, 54 DLR (4th) 577 [Ford, cited to SCR].

40. Enshrined as a law in 1977, the Charter of the French Language preserves the quality and status of the French language in Québec as one basis of the province’s identity and distinct culture. The intent of the law is to ‘to make French the language of Government and the Law, as well as the normal and everyday language of work, instruction, communication, commerce and business.’ (Charter of the French Language). Section 58 states, “Public signs and posters and commercial advertising must be in French. They may also be both in French and in another language provided that French is markedly predominant.

However, the Government may determine, by regulation, the places, cases, conditions or circumstances where public signs and posters and commercial advertising must be in French only, where French need not be predominant or where such signs, posters and advertising may be in another language only.” Section 59 states, ‘59. Section 58 does not apply to advertising carried in news media that publish in a language other than French, or to messages of a religious, political, ideological or humanitarian nature if not for a profit motive.’

41. Ford, supra note 38 at 751, citing R v Big M Drug Mart Ltd., supra note 38 at 336.

42. Ibid.

43. Ibid at 751.

44. Ford, supra note 38.

45. Ibid at 778.

46. Supra note 3.

47. Supra note 4.

48. Ford, supra note 38, at 779.

49. R v Pinehouse Plaza Pharmacy Ltd [1988] SJ No 232, [1988] 3 WWR 705.

50. R v Mader’s Tobacco Store Ltd, 2013 NSPC 29.

51. Canadian Newspapers Co v Victoria (City) [1991] BCCAAA No 147, 1991 CarswellBC 2467.

52. Civil Code of Québec, CQLR c CCQ-1991.

53. Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61.

54. Ibid at para 415.

55. Supra note 4, at s. 9.1.

56. Supra note 24.

57. This term denotes the separation of state and religion, and encompasses the religious neutrality of the state, the equality of all citizens, and people’s freedom of conscience and freedom of religion.

58. Supra note 30

59. Other examples are Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, and Syndicat Northcrest v Amselem [2004] 2 S.C.R. 551.

60. Supra note 20.

61. Supra note 21.

62. Neskonlith Indian Band v Salmon Arm (City), 2012 bcca 379 [Neskonlith].

63. Clyde River (Hamlet) v Petroleum Geoservices Inc., 2017 scc 40 (CanLII), at para 22.

64. Supra note 38.

65. See Beliveau St-Jacques v. Federation des employees et employes de services publics inc., [1996] 2 S.C.R. 345; Augustus v. Gosset, [1996] 3 S.C.R. 268; Quebec (Agence du Revenu) v. Services Environnementaux AES inc., 2013 SCC 65, [2013] 3 S.C.R. 838; Droit de la famille—132495 (N.D. c. B.C.), 2013 QCCA 1586, [2013] R.J.Q. 1527.

66. Supra note 4.