Supreme Court of Canada declines to hear appeal to stay Quebec’s secularism law (Bill 21)
Written by CLF Member Vivian Clemence
The Supreme Court of Canada has dismissed a request brought by civil rights groups to suspend Quebec’s ban on religious symbols pending judicial review.[i] Quebec’s secularism law, Bill 21,[ii] prohibits public servants in positions of authority from wearing religious symbols at work.[iii]
Commenting on the Supreme Court’s decision, the Canadian Civil Liberties Association (CCLA) comments: “While we are deeply disappointed in this result, our main challenge of the law still lies ahead.”[iv]
The law is currently facing three other legal challenges,[v] which the Quebec Superior Court is expected to hear jointly with the civil rights groups’ legal challenge in October 2020.[vi] In the meantime, Bill 21 will continue to operate, with new graduates facing barriers to public employment in Quebec based solely on their religious identity.
The CCLA, the National Council of Canadian Muslims (NCCM) and Ichrak Nourel Hak – an education student who wears a hijab – sought leave to appeal the Quebec Court of Appeal’s 2-1 decision issued December 12, 2019, dismissing their application for a provisional stay.[vii]
Bill 21 contains a “notwithstanding” provision under section 33 of the Charter, allowing the law to temporarily operate in violation of rights and freedoms guaranteed under sections 2, 7, and 15 of the Charter.[viii]
The appellants, however, invoked section 28 of the Charter, which provides that Charter rights and freedoms are “guaranteed equally to male and female persons”. The appellants contended that Bill 21 violates section 28 of the Charterby disproportionately limiting the right of women (who, in some religious traditions, wear religious symbols while men do not) to equality and to freedom of religion.[ix] Since section 33 of the Charter does not specifically state its power to override section 28, they argued that the “notwithstanding” provision in Bill 21 does not extend to section 28 of the Charter, such that the law can and must be suspended.[x]
To date, no court has addressed the interplay between sections 28 and 33 of the Charter.[xi] While the three Quebec Court of Appeal judges acknowledged that Bill 21 is causing harm which may be irreparable to female teachers who wear religious symbols,[xii] the majority found that it is not clear that section 28 of the Charter precludes the Quebec legislature from invoking the notwithstanding clause. As a result, the majority declined to suspend Bill 21.[xiii]
Chief Justice Hesler, dissenting, held that the appellants’ application met the three criteria required for a provisional stay.[xiv] The Chief Justice found that the notwithstanding clause “does not preclude an examination of the balance of convenience and the public interest” and highlighted the Courts’ responsibility to “safeguard fundamental rights.”[xv] In light of this obligation, the Chief Justice would have granted the stay, concluding that “it would be best to prioritize respect for fundamental rights during the proceedings […] rather than deprive individuals of their fundamental rights, even for a limited time.”[xvi]
In the meantime, the challenge to Bill 21 has yet to be heard on its merits, and a number of groups have applied to intervene in that proceeding. On January 9, 2020, the Mouvement laïque québécois (MLQ) was granted leave to intervene before the Quebec Superior Court. In its request, the MLQ argued that Ms. Hak is imposing her religious practice on children and parents by wearing a religious symbol at work, thus infringing parental authority over the moral education of their children and violating the principle of the neutrality of the state in religious matters.[xvii]
Shortly after the Quebec Court of Appeal handed down its decision, the Canadian Bar Association (CBA) issued a statement at its annual general meeting on February 19, 2020, “Commitment to religious equality in the legal profession”. Christian Legal Fellowship (CLF) Executive Director, Derek Ross, put forward the resolution – seconded by Montreal lawyer, Nour Farhat – to affirm the CBA’s commitment to religious equality and freedom.[xviii]
Many CLF members supported this initiative – from the drafting process, to preparing the resolution for presentation, to speaking during the debate. A second resolution was also scheduled for debate, which would have the CBA “update all internal bylaws and policies to specifically include religion in any list of enumerated grounds pertaining to equality, diversity or inclusion”. Unfortunately, due to time constraints, that resolution was tabled for a future CBA meeting.
In its statement, the CBA commits itself “to religious equality and diversity, and to combatting any religious discrimination within the legal profession and against lawyers based on their religious beliefs”. Specifically, the statement resolves to “denounce any law and deter any government policy that denies equal opportunities within, or access to, the legal profession based on a person’s religion, and in particular Quebec Bill 21, An Act respecting the laicity of the State” (emphasis added). The statement further affirms that “any law denying equal opportunities to legal professionals based on their religion is unjust, antithetical to the principles of an independent and diverse bar, and contrary to the public interest”.
The CBA goes on to state its opposition toward “all forms of religious discrimination in the legal profession and otherwise” (emphasis added). Finally, the statement urges “all government actors and regulatory bodies to respect and uphold the equal treatment of all members of the legal profession without discrimination on the basis of their religion, and to protect religious freedom and religious equality in a manner consistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, as well as human rights legislation” (emphasis added).[xix]
CLF was one of the first lawyers’ associations to express concern about Bill 21’s provisions, especially as they pertain to the legal profession. In a statement endorsed by 115+ lawyers and law students and submitted to Quebec’s National Assembly on May 14, 2019, CLF stated:
“As lawyers of faith, we view the practice of law as a manifestation of our religious commitments. Our religion is what compels us to serve our clients with compassion and to seek justice with integrity. It would be a profound loss to the public interest and common good if religious lawyers – based solely on their identifying with those very faith commitments – were denied the opportunity to participate equally in the administration of justice.”
CLF is continuing to monitor this litigation, and to advocate for religious freedom and equality in the legal profession and in the public square.
Read More:
Read CLF’s submission to the National Assembly of Quebec in French and English
Nour Farhat & Derek Ross, “Religious inclusion in legal profession” (The Lawyer’s Daily, 18 February 2020)
Derek Ross & Kristopher Kinsinger, “Religious expression is under attack in Canada – and not just in Quebec” (The Globe and Mail, 11 July 2019)
Derek Ross & Robert Reynolds, “Controversial Bill 21 demands irreligious uniformity, opposite of neutrality” (The Lawyer’s Daily, 14 June 2019)
Read more about the CBA resolutions in the article below, excerpted from the April 2020 Christian Legal Journal (click the “[ ]” icon in the bottom right corner to enable full screen mode):
Vivian Clemence, J.D., is a bilingual lawyer in Northern Ontario. She practices in a community legal clinic with a focus on housing and poverty law.
[i] Ichrak Nourel Hak, et al v Attorney General of Québec (9 April 2020), online: SCC <https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/18262/index.do?q=hak>. [Hak SCC leave to appeal dismissal].
[ii] An Act respecting the laicity of the State, SQ 2019, c 12, received royal assent on 16 June 2019 [Bill 21], available online: <http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-21-42-1.html?appelant=MC>.
[iii] Ibid, ss 6, 8.
[iv] “Supreme Court won’t hear bid to suspend Quebec’s secularism law”, CBC News, April 9, 2020, online: <https://www.cbc.ca/news/canada/montreal/supreme-court-bill-21-appeal-1.5527355>.
[v] For an overview of the legal challenges, see: “One law, many challenges: How lawyers are trying to overturn Quebec's religious symbols ban”, CBC News (December 12, 2019), online: <https://www.cbc.ca/news/canada/montreal/bill-21-quebec-court-challenges-1.5393074>.
[vi] “Civil rights group want to challenge Quebec religious symbols ban in Supreme Court”, CBC News, December 18, 2019, online: <https://www.cbc.ca/news/canada/montreal/bill-21-challenge-seek-leave-to-appeal-1.5400738>.
[vii] Hak v Attorney General of Quebec, 2019 QCCA 2145 [Hak v AG].
[viii] Bill 21, supra, s 30.
[ix] Hak v AG, supra, para 35.
[x] Ibid at para 34 (C.J.Q. Hesler, dissenting).
[xi] Ibid at paras 20, 49 (C.J.Q. Hesler, dissenting).
[xii] Ibid at paras 66–72 (C.J.Q. Hesler, dissenting); 95–96 (Bélanger, J.A.); 115 (Mainville, J.A.). See para 72: “In summary, it appears at this stage that the risk of suffering irreparable harm has materialized for some female teachers or future teachers, all of whom are women, who aspired to a career in teaching. The harm will continue to exist for the others who will have to give up their chosen career or move out of the province because they do not want to give up wearing a religious symbol”.
[xiii] Ibid at paras 91–97 (Bélanger, J.A.).
[xiv] See Hak v AG, supra: The potential infringement of section 28 passes the “urgency” test (paras 59–61); the serious nature of the equality of rights under section 28 meets the “serious question” standard establishing an appearance of right (para 64); and the affidavit evidence of present and future female teachers satisfies the “irreparable harm” test (paras 65–72).
[xv] Ibid at paras 73–77 (C.J.Q. Hesler, dissenting).
[xvi] Ibid at para 82 (C.J.Q. Hesler, dissenting).
[xvii] “Pro-Bill 21 group wins round in court challenge”, Montreal Gazette (January 9, 2020), online:
<https://montrealgazette.com/news/local-news/pro-bill-21-group-wins-round-in-court-challenge>.
[xviii] For more background information, see “Commitment to religious equality”, CBA National Magazine (15 January 2020), online: <https://nationalmagazine.ca/en-ca/articles/cba-influence/resolutions/2020/commitment-to-religious-equality>.
[xix] See Canadian Bar Association, Commitment to religious equality in the legal profession, Resolution 20-08-A (19 February 2020), online: <https://cba.org/Our-Work/Resolutions/Resolutions/2020/Commitment-to-religious-equality-in-the-legal-prof>.