Quebec's top court won't suspend province's religious symbols ban, but judges say rights being violated

Quebec's Court of Appeal has refused to suspend the province's controversial ban on religious symbols, even while acknowledging it causes "irreparable harm" to those affected.

The province's top court was ruling on a request to stay sections of the Laicity Act, or Bill 21, pending a ruling on its constitutionality.

In a 2-1 decision issued Thursday afternoon, the court said the law should be allowed to stand until the challenges are heard in Quebec Superior Court. 

The law is being challenged with four separate lawsuits, three of which are expected to be heard together in October 2020.

The Laicity Act, passed in June, bans public school teachers, government lawyers and police officers, among other civil servants, from wearing religious symbols at work.

Opponents say it unfairly targets cultural minorities, especially Muslim women who wear the hijab. 

All three justices wrote in the ruling Thursday there is evidence the law is causing harm to Quebecers who wear religious symbols.  

Justice Dominique Bélanger, who sided with the majority, said it is "apparent that their fundamental rights are being violated." She singled out Muslim women who wear the hijab. 

But that alone isn't enough to justify an injunction because of the notwithstanding clause, Bélanger indicated, which was included in the legislation by the provincial government to override certain sections of the Charter of Rights and Freedoms.

At this stage in the case, she said, the notwithstanding clause forces the courts to "abandon to their fate women graduates who are willing to work and who, for the sole reason that they wear the veil, have been denied access to a job for which they hold all the skills."

Justice Robert Mainville, also for the majority, wrote that "given the use of the notwithstanding provision, it does not appear legally possible at this preliminary stage" to suspend the law.

He warned, though, that invoking the notwithstanding clause is "not a trivial matter." 

"One must tread very carefully when invoking such extraordinary powers," he wrote.

And he concluded, similar to Bélanger, that people "will suffer what may be characterized as serious and irreparable harm" because of the ban on religious symbols.

Such harm, he wrote, "stems from the violation" of the freedom of religion guaranteed under the charter. Bill 21 invokes the notwithstanding clause to override that part of the charter.

But he also added that it's a murky question whether opponents of the law can appeal to other sections of the charter — such as Section 28, dealing with gender equality — in order to defend their rights. 

Mainville argued that an appeals court considering an injunction is bound to presume that legislation is constitutionally valid. It would be wrong, he said, to suspend a law before the deeper constitutional questions are settled.

Chief Justice Nicole Duval Hesler, the lone dissenting voice, wrote that the harm caused, in particular to female teachers, outweighs the benefits the government attaches to the law. 

She wrote that "the risk of suffering irreparable harm has materialized for some female teachers and future teachers." 

'We are not done'

In a statement, the National Council of Canadian Muslims, one of the appellants in the case, said it is reviewing its options following the decision.

"While we are disappointed with the result, we never thought that fighting for the rights of Quebecers and Canadians would be easy," said Mustafa Farooq, the organization's executive director. 

Noa Mendelsohn Aviv of the Canadian Civil Liberties Association, which is also involved in the legal challenge, said "we are not done fighting this unjust law."

Premier François Legault has argued the law protects Quebec's secular culture and will put an end to long-running debates about how to accommodate minority cultural practices. 

Sonia LeBel, the province's justice minister, said in a statement the government is "satisfied" with the ruling.

"We will continue to defend the merits and the constitutionality of this Act, as well as those of all the laws democratically adopted by the National Assembly," she said.