Supreme Court of Canada declines to hear appeal to suspend Quebec's "secularism" law

This essay first appeared as an article in the May 2020 edition of CFI Canada's Critical Links newsletter.

Quebec's Bill 21, regrettably generally referred to as its secularism law, bans the wearing of religious symbols by certain civil servants (government lawyers, judges, police, and teachers, among others). It was passed by the provincial legislature in June 2019, and applies to new hires. Existing employees (hired before March 27, 2019) may continue to wear religious garb in their current position, though the exemption is void if they either accept a promotion or make a lateral move to a new role.

Polls in Quebec show that Bill 21 is popular - supported by approximately two-thirds of Quebecois. Polls also indicate that much of this support is rooted in anti-Muslim animus, and that it would drop substantially if courts found Bill 21 to be unconstitutional. 

The law invokes the "notwithstanding clause" (Section 33) from the Canadian Charter of Rights and Freedoms, which shields the law from many forms of constitutional challenges. While rare in the rest of Canada, Quebec often invokes the notwithstanding clause to deter litigation about its legislation. 

The law was immediately challenged, on two fronts: its fundamental constitutionality, and a request for an emergency stay to prevent its provisions from taking effect until the full case can be heard.

In July 2019, the Quebec Superior Court denied the request for a stay, stating that while the challenge raised a serious issue, there was no irreparable harm. 

When the case went before the Quebec Court of Appeal, the argument against Bill 21 was expanded to include Section 28 of the Charter, which states "rights and freedoms [...] are guaranteed equally to male and female persons". This was an interesting development because if Bill 21 was found by the Court to discriminate against women, it would be found to be unconstitutional, despite the invocation of the notwithstanding clause. However, the Quebec Court of Appeal ruled 2-1 against granting a stay in December 2019. The majority wrote in part, "the notwithstanding clause dictates that, at this stage of the case, the courts must abandon to their fate women graduates who are willing to work and who, for the sole reason that they wear the veil [hijab], have been denied access to a job for which they hold all the skills." [Translated from the French.]

Unsurprisingly, this decision did not sit well with those who oppose Bill 21. In January 2020, a formal request was filed for the Supreme Court of Canada to hear the application for a stay. On April 9, 2020, the Supreme Court declined to do so. As is its standard practice, no reasons were given. The substantive challenge to the law's constitutionality is scheduled to be in in October 2020 (though this might be delayed due to covid-19). Assuming no delays, a decision should be released around this time in 2021.

Note: "Secularism" has several definitions, and confusion can result if people do not have a common understanding of how it is being used. CFI Canada supports political secularism, defined as government neutrality in matters of religion; that is, the state should neither support nor suppress religious expression. 

I gratefully acknowledge the research of Catherine Francis, which informed parts of this article.