Civil rights groups challenging Quebec's religious symbols ban file appeal to Canada's top court

In a statement Friday, the National Council of Canadian Muslims and the Canadian Civil Liberties Association, along with plaintiff Ichrak Nourel Hak, said they have filed a request to seek leave to Canada's top court. 

Request for appeal was filed in a 27-page brief Friday

Accompanied by supporters, members of the National Council of Canadian Muslims Mustafa Farooq, centre, and Bochra Manai, left, are seen leaving the Quebec Court of Appeal, where they challenged Bill 21 earlier this year. (Graham Hughes/The Canadian Press)

Civil rights groups challenging Quebec's controversial ban on religious symbols have filed an appeal to the Supreme Court of Canada. 

Last month, Quebec's Court of Appeal rejected a request to suspend portions of the law, known as Bill 21, pending a ruling on its constitutionality.

In a statement Friday, the National Council of Canadian Muslims and the Canadian Civil Liberties Association, along with plaintiff Ichrak Nourel Hak, said they have filed a request to seek leave to appeal to Canada's top court. 

The request was presented in a 27-page brief. Supreme Court judges will have to decide whether or not to accept the case.

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

All three justices, however, said there is evidence the law is causing harm to Quebecers who wear religious symbols. 

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

It bans public school teachers, government lawyers and police officers, among other civil servants, from wearing religious symbols at work.

The application to the Supreme Court raises two major issues: whether there has to be a "clear case of unconstitutionality" as the standard for a law to be suspended while it is further challenged in the courts, and whether the notwithstanding clause can prevent a law from being stayed. 

The Quebec government invoked the notwithstanding clause in a bid to restrict challenges to the law's constitutionality. 

'Merit this court's attention'

The applicants have argued the legislation is beyond Quebec's power to create since "regulating religion for a moral purpose falls under federal jurisdiction to adopt criminal laws."

They say it is "impermissibly vague," excludes people from public careers and is sexist.

"Quebec residents have already suffered serious and irreparable harm because this legislation was not stayed pending the constitutional challenge," they write in the application. 

The first judge to rule on the request for a stay, Quebec Superior Court Judge Michel Yergeau, said the applicants hadn't sufficiently demonstrated the harm the law could cause. The request for the stay was made July 9, less than a month after the law passed. 

On appeal, the applicants presented stories of mostly Muslim women, who had either been harassed in the streets because of their religious garb or whose teaching job applications had been turned down by school boards citing Bill 21.

The two of three Quebec Court of Appeal judges who rejected the stay request on appeal presented different reasons for their decision, but both found "it was not sufficiently clear that the legislation was blatantly unconstitutional," the applicants wrote.

Women leave the Quebec Court of Appeal in Montreal on Tuesday after a hearing related to a challenge of Bill 21 in the fall. (Graham Hughes/The Canadian Press)

The applicants argue that standard is unreasonable, saying, "if that is the standard, no amount of harm suffered would be sufficient for applications to obtain a stay of any law."

They say it is in the Supreme Court's interest to rule on the case to clarify the threshold of potential unconstitutionality for future stay requests and to determine how a government's invoking of the notwithstanding clause could affect requests for stays. 

"The questions that this case raises are ones of public importance and merit this court's attention," the document said.

'There are people who are suffering'

And while the challenges to the law's constitutionality make their way through the courts, it is causing more harm, the groups said.

"There are people who are suffering," said Noa Mendelsohn Aviv, equality program director at the Canadian Civil Liberties Association. "It does require an urgent remedy."

Mendolsohn Aviv said the groups are asking for the court to hear the case on an "expedited basis."

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.

With files from Benjamin Shingler and Elias Abboud