Bill 21 challengers face a long battle

OTTAWA -- Opponents of Quebec’s Bill 21 are hoping that Canada’s Supreme Court will take on a legal appeal to have the law suspended until arguments against the law are fully heard in Quebec court next fall. 

The organizations behind the first legal challenge that was launched against Quebec’s secularism law Bill 21 — the National Council of Canadian Muslims (NCCM), Canadian Civil Liberties Association (CCLA) and a university student involved in the case — filed an appeal to Canada’s Supreme Court in January, after failing by a 2-1 decision to convince a Quebec appeal court to suspend the law, which among other things bans the wearing of religious symbols by those in positions of authority who work for the state such as teachers, police officers and judges.

“It is in the hands of the Supreme Court now. When they decide if they are going to accept what was filed, we will have more to say,” the NCCM’s executive director, Mustafa Farooq, told Canadian Catholic News on Feb. 13.

The CCLA and the NCCM joined forces immediately after Quebec’s Bill 21 became law to launch a legal challenge to the bill that has been 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. Other challenges have since 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 notwithstanding clause of the Canadian Constitution in an effort to shield it from being challenged legally.

The Quebec Court of Appeal ruled in a 2-1 decision that was released on Dec. 12, 2019, that it would not suspend aspects of the law before the primary case against the law is heard in Quebec court. 

Both of the judges who ruled not to suspend the law cited the use of the notwithstanding clause as a reason for not being able to act, although all three of the judges indicated that indeed the law has had negative consequences for some Quebecers.

Lawyers for the two groups involved in this specific case had asked for an injunction against the law previously that was denied, but they were allowed to appeal that decision. In their appeal, which heard final arguments on Nov. 26, they argued that Bill 21 overwhelmingly targets women because the people being most directly impacted since the law came into effect last June are women who wear head coverings.

Their legal argument was the law should be struck down because Quebec’s so-called secularism law violates the sexual equality guarantees in Section 28 of the Canadian Charter of Rights and Freedoms, and they claimed that Section 28 can’t be shielded from challenge by the notwithstanding clause.

The CCLA and NCCM’s primary case challenging the legality of the Quebec bill is expected to be heard in Quebec Superior Court next fall.

Many human rights and religious groups have been calling on the federal government to get involved in the legal challenges to Bill 21, but so far the federal government’s position has been to stay out of the Quebec court cases while holding out the possibility of getting involved if those cases eventually end up in Canada’s Supreme Court.

However, the federal Liberals now have a minority government, and the leaders of all the other main parties in the House of Commons indicated during the federal election in the fall that they did not have any appetite to challenge Quebec’s right to do as it pleases on this issue.

Both the CCLA and NCCM said previously they know the court fight against Bill 21 could go on for years and that they were prepared to fight the law for however long it takes.

“We know this has the potential to go all the way to the Supreme Court and we could be looking at a long battle of five to seven years,” a statement on the CCLA website said. 

It is expected that at some point in the future the issues surrounding Quebec’s Bill 21 will eventually end up at the Supreme Court. 

The attempt by the NCCM and the CCLA to have the Supreme Court get involved at this stage is specific to arguments that were made in the Quebec appeal court and its decision not to suspend the law until the main case is heard in Quebec Superior Court.

“As a majority of the Quebec Court of Appeal acknowledged, Quebec residents have already suffered serious and irreparable harm because this legislation was not stayed pending the constitutional challenge,” they state in their filing for appeal. “The only reason that Court declined to issue a stay is because a majority found that it was not sufficiently clear that the legislation was blatantly unconstitutional. Yet if that is the standard, no amount of harm suffered would be sufficient for applicants to obtain a stay of any law.”

While the court cases continue, the former leader of the federal NDP, who is also a former Quebec provincial Liberal government cabinet minister, Thomas Mulcair, called out Justin Trudeau’s Liberal government for its inaction.

“Justin Trudeau has the power to refer Bill 21 to our highest court to avoid further delay,” Mulcair argued in an opinion piece published in the London Free Press on Feb. 4. “If this were any other province, he would’ve already done so. Because it’s Quebec, he won’t.”