Supreme Court set to hold marathon hearing on Quebec’s “secularism” law

The Supreme Court of Canada kicks off one of the most highly anticipated and consequential Charter cases in many years this week. 

The marathon four-day hearing will examine the constitutional validity of Quebec’s secularism law, colloquially known as Bill 21. Passed in 2019, the bill prohibits people from wearing religious symbols or clothing while working in the public service. 

Although the provincial government has insisted the law is constitutional, it pre-emptively invoked the Charter’s notwithstanding clause to protect the law from being struck down by the courts. It has already renewed the clause once, as it had reached its five-year limit.

‘A river overspilling its banks’

But while the legislation is what sparked the case, Eric Adams, a University of Alberta law professor and constitutional scholar, tells the Verdicts and Voices podcast what’s coming before the Court has broadened beyond that to focus on the nature of the use of the notwithstanding clause, the meaning of the clause in Canada’s constitutional arrangements, the legal effects of its use, and whether there is any scope or possibility for some kind of judicial review even when it’s invoked.

He says some intervenors are calling for the Court to rethink its approach to the notwithstanding clause, while others plan to raise questions about the legislation’s impact on vulnerable people. It remains to be seen whether the Court will be willing to revisit the only other substantial judicial decision it’s issued on the notwithstanding clause. Its 1988 ruling in Ford found there is nothing wrong with the pre-emptive use of the clause.

“So, you tie all that together and you have a Court that's going to be wrestling with a lot of very challenging and weighty constitutional issues,” Adams says. “It’s like a river overspilling its banks.”

The case comes to the Supreme Court after a series of challenges from groups such as the English Montreal School Board, the World Sikh Organization of Canada, the National Council of Canadian Muslims, and the Canadian Civil Liberties Association. 

In all, there are tentatively 51 intervenors that will appear before the Court during the hearing. Among them will be Ontario Attorney General Doug Downey, who will appear personally to present the province’s case, as well as several deputy ministers of justice. This, coupled with the length of the hearing, is “novel and reasonably unprecedented,” Adams says.

Pre-empting judicial review

In the years since Bill 21 was passed, both the Quebec Superior Court and the Quebec Court of Appeal ruled that, because of the notwithstanding clause, they could not rule on the law’s constitutional validity, which would have at least been declaratory relief.

In August, the Saskatchewan Court of Appeal reached the opposite conclusion in a 4-1 ruling related to the province’s invocation of the clause to protect legislation that requires parental notification when gender diverse students use different names or pronouns at school. The UR Pride decision says courts should provide declaratory relief because nothing in the text of the Charter or Constitution suggests that invoking the notwithstanding clause means governments should have the only word on the subject. This sets up a situation where the Supreme Court will have to decide which decision will stand.

“I am of the view that there is nothing about the notwithstanding clause that pre-empts judicial review itself,” says Emmett Macfarlane, a political science professor at the University of Waterloo who specializes in constitutional law and politics, governance, and public policy, adding that courts should be able to declare that a law is unconstitutional but for the fact that the government that passed it invoked the override. 

He notes that the Court has asked for additional submissions on the validity of Bill 21, so observers are wondering whether it’s leaning toward a declaration, even if the law is not struck down under the Charter.

If the Court does entertain a declaratory decision, Macfarlane says he would love to see it entertain the argument that, in fact, the law is not rationally connected to its stated objective.

“Quebec has continuously defended this law as about state neutrality in religion and secularism, but the law as crafted isn’t state neutrality,” he says.

“It’s the imposition of irreligion, which is not state neutrality. I think there is an argument that this should be struck down at the rational connection stage, basically saying that the law is arbitrary.”

Back to judicial review, Bennett Jensen, the legal director at Egale Canada, which is intervening, says although a lot of provinces are taking the position of the Quebec Court of Appeal that once the notwithstanding clause has been used, the court has no role, their position is that courts have to retain a role when it’s invoked.

Egale will also argue that the Court’s interpretation of the notwithstanding clause must take into account the unwritten constitutional principle of protection of minorities.

“Simply put, that has to inform its analysis,” Jensen says. “The context in which the clause is being used matters, and the Court needs to take that into account.”

Normalizing oppression

Sahar Talebi, an associate at Lenczner Slaght who’s intervening on behalf of the Canadian Council of Muslim Women, told the Verdicts and Voices podcast that while there are a number of legal questions and analyses to consider, this type of Charter case is never decided in a vacuum. That’s why she’s aiming to highlight how this legislation directly impacts Muslim women in Quebec as minorities living with it every day.

Whether it’s where they work or the freedom to choose how they want to dress, she says Muslims are being policed, judged, and stigmatized.

“That has a real impact on the way that they're able to function and participate in society. It’s really about … the way in which they see themselves and the rest of the community and the society sees them,” Talebi says.

“It's leading to the normalization of the oppression of Muslim women and sort of the acceptance of this culture of exclusion for everyone else towards these vulnerable minority groups.”

Macfarlane says that one thing that is unprecedented in this case is that no qualified lawyer in the country disputes that Bill 21 is unconstitutional. There’s agreement that it plainly violates religious freedom and equality rights, and only continues to operate by virtue of the notwithstanding clause.

“I cannot think of any other case that has reached the Supreme Court under that scenario,” he says. 

“Really, all of the arguments that are hard law, that are real questions that we need to settle, are arguments about either whether there are aspects of this law that the notwithstanding clause cannot touch. (That includes) the equality rights of the sexes under section 28, and means the Court will be answering a big question around the relationship between section 28 and section 33.”

Macfarlane says among the factums submitted to the Court, including the federal government’s, there are arguments for substantive limits on the notwithstanding clause, including whether repeated renewal somehow “ousts” certain Charter rights in an illegitimate way and if that warrants the Court imposing unwritten limits on its use. 

He says the text of the Constitution and the notwithstanding clause would allow it to be renewed ad infinitum, so it would be quite radical for the Court to accept that aspect of the federal government’s submission.

Will there be guardrails?

Wade Poziomka, a partner with Ross & McBride LLP in Hamilton and past chair of the Canadian Bar Association’s constitutional and human rights section, says the CBA had hoped the federal government would take the lead with the provinces to put in voluntary guardrails around the use of the clause, including requiring a two-thirds majority of votes in the legislature and public consultations before it is invoked. The CBA would also have liked to have seen governments agree to standards for when it is used pre-emptively. To date, neither level of government has moved on this front. 

“This sets up the Court’s hearing as an all-or-nothing when it comes to those limits,” he says. 

Given that the cause needs to be renewed every five years, which is the maximum lifespan of any parliament or legislature under the Constitution, the initial sense was that this would give voters the ability to weigh in on its use.

“One would hope that people would care, but in today’s environment, I’m not sure that people do care as much as they might have in the past,” Poziomka says. 

“I’m not sure those consequences are there. That’s why provincial governments in Ontario, Saskatchewan, and Quebec are more willing to use the notwithstanding clause in these situations.”

He would like to see the Supreme Court take governments to task for their pre-emptive use aimed at ensuring there is no role for the courts in the conversation on limiting rights. 

“How much can the courts push back?” Poziomka asks. 

“They might want to, but because section 33 is pretty clear, the most they can do is chastise them and maybe make people care a little bit more about that than they do now, and speak the language of politicians, which is votes.”

As things get underway, Macfarlane says there will be dynamics to watch during the oral hearing. His past research has found that, in most cases, judges walk into a hearing knowing which way they lean on the case and which questions they want to think more about.

“When I interviewed judges for my first book, they said that the oral hearing changes their mind in about five to 15 per cent of cases,” Macfarlane notes. 

“That’s not to understate the importance of the hearings, because it can change the reasoning. Sometimes the questions [judges ask] are as much for their colleagues as it is directed at the litigants.”