The Supreme Court of Canada won’t wade into the legal fight against Quebec’s secularism law Bill 21 at this time.
The organizations behind the first legal challenge launched against Bill 21 – the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and a university student involved in the case – had filed an appeal after a Quebec appeal court decided last year not to suspend the law’s application.
The appellants were hoping the Supreme Court would take up the case and rule against Bill 21, which bans the wearing of religious symbols by public servants in authority such as judges, police officers, and teachers, until the constitutional merits of the bill are fully vetted in Quebec Superior Court later this year.
But on April 9, they learned the Supreme Court had decided not to take up the case. As is standard practice, the court did not explain why it would not take on the case at this time.
In a statement, both organizations seeking the appeal vowed to continue fighting Bill 21 in the courts.
“We promised to defend Canadian civil liberties and we will continue to keep that promise,” said council of Muslims executive director Mustafa Farooq.
The council of Muslims and the civil liberties association joined forces immediately after Bill 21 became law last year and were the first groups to launch a legal challenge against the legislation, which has been severely criticized both in Quebec and across Canada by religious groups, human rights organizations, and some politicians for infringing on the religious freedom of Canadian citizens.
Since the CCLA and NCCM launched their court challenge, other challenges have been filed, including by the largest English language school board in Quebec.
However, the challenges to the law face a tough hurdle since the Quebec government invoked the Charter of Rights and Freedoms notwithstanding clause in an effort to shield it from legal challenges.
Lawyers for the two organizations initially sought, and were denied, an injunction against the law. In their appeal last November, they argued Bill 21 overwhelmingly targets women wearing head coverings, violating the sexual equality guarantees in Section 28, one of the sections of the charter that isn’t covered by the notwithstanding clause.
The Quebec Court of Appeal ruled in a 2-1 decision Dec. 12 that it would not suspend aspects of the law before the primary case against the law is heard in Quebec Superior Court in late 2020, and it appears the use of the notwithstanding clause by the Quebec government was a critical factor in that decision.
Both of the judges who ruled not to suspend the law cited the use of the clause as a reason for not being able to act, although all three judges hearing the appeal indicated the law has had negative consequences for some Quebecers.
Many human rights and religious groups have called on the federal government to take part in legal challenges to Bill 21, but so far the government has chosen to observe while holding out the possibility of getting involved if the matter ends up at the Supreme Court.
With the federal Liberals now leading a minority government and none of the opposition party leaders showing interest in challenging Quebec, the court fight against Bill 21 could go on for years, say both the CCLA and NCCM.