Supreme Court could change notwithstanding clause in light of Quebec's Bill 21, opponents argue

OTTAWA — Quebec’s secularism law is an unjust attack on religious Quebecers and the Supreme Court could “reverse or enhance” the Charter’s notwithstanding cause to prevent that, opponents of the legislation argued Monday.

On the first of four days of hearings over Bill 21, six groups opposing the province’s secularism law told the Supreme Court of Canada (SCC) that it violated a litany of Charter rights, including religious and language freedoms, multiculturalism and gender equality.

They also argued that the province’s invocation of the Charter’s notwithstanding clause was not enough to suspend the plethora of rights affected by the controversial bill, some of which cannot be suspended via the clause.

“Bill 21 states that there exists something fundamentally wrong and harmful with religious practices, some of them in particular, from which we must protect the public,” argued Olga Redko, lawyer for Ichrak Nourel Hak and other Muslim teachers in the province.

Opponents of the law in court include the English-Montreal School Board, the World Sikh Organization, teacher groups and an association representing Jewish jurists, while its defenders include the Quebec government and state secularism advocacy groups, who will argue their case Tuesday.

The law — colloquially known as Bill 21 — prohibits certain Quebec public sector workers, such as judges, police officers, teachers and prison guards, from wearing religious symbols at work and requires them to perform their duties with their faces uncovered.

To pass his flagship Bill 21 in 2019, Quebec Premier François Legault invoked section 33 of the Charter of Rights and Freedoms, known as the notwithstanding clause.

The clause allows a government to override certain Charter rights for up to five years, at which point the use of the power must be reviewed. It’s been invoked increasingly by Alberta, Quebec and Ontario in recent years.

In 2024, Quebec’s Court of Appeal upheld virtually all aspects of the province’s secularism law based on the invocation of the notwithstanding clause.

The issue on trial is far broader than Quebec’s secularism law.

Fundamentally, the case is about whether there should be limits to a province’s power to invoke the notwithstanding clause, a cornerstone of the Charter that convinced most provinces to sign on to the document in 1982.

At the time, provinces argued that it was a necessary balance between the power of the legislature and that of courts.

Quebec, Ontario and Alberta as well as secularism groups argue that the text of the Charter sets no limits on the invocation of the notwithstanding clause, and to do so would amount to a constitutional amendment by the top court.

But the federal government argued in its written submissions that the notwithstanding clause wasn’t created with the intent of repeat invocation to the point of suspending those Charter rights indefinitely. Instead, it argued that use of the notwithstanding clause should be limited, though it left how to the court.

Many groups challenging Bill 21 have put forward similar arguments all the while also pushing for the SCC to recognize that courts have the right to determine if legislation violates Charter rights even if the notwithstanding clause is invoked.

If accepted by Canada’s top court, the proposal could create the first ever substantive limit to the use of the increasingly popular notwithstanding clause.

Throughout the first day of hearings, the three judges from Quebec (Chief Justice Richard Wagner and judges Nicholas Kasirer and Suzanne Côté) and Malcolm Rowe from Newfoundland were particularly active, frequently jumping in with questions for counsel.

Their questions suggested they are skeptical of suggestions that the SCC impose any substantive limits of changes on the notwithstanding clause.

In his pleading, the lawyer for Quebec teacher union Fédération Autonome de l’Enseignement argued that times had changed since 1982, and provinces were emboldened to use the notwithstanding clause both more frequently and pre-emptively to shield its legislation.

The lawyer, Frédéric Bérard, told the court that nothing would prevent a future Canadian “mini-Trump” from invoking the notwithstanding clause.

“Everything, or almost, that is happening in the United States could happen here in a perfectly constitutional manner” due to the current interpretation of the clause, Bérard told the court.

“We can no longer analyse (section) 33 in the same way that we did” back in the 1980s, he added, suggesting that the SCC could “reverse or enhance” the notwithstanding clause in light of the “new reality”.

“You are asking us to make a constitutional amendment,” Justice Suzanne Côté replied flatly.

On Monday, the lawyer for the English-Montreal School Board argued that Bill 21 disproportionately impacted Muslim women who wear the hijab, which means it also contravened gender equality rights in the Charter that can’t be overridden by the notwithstanding clause.

The Court is sitting as a panel of seven judges since Justice Mahmud Jamal recused himself from the case last year following a request from the Quebec government.

To maintain an odd-numbered bench, Justice Marie Moreau — the most junior judge on the SCC — is also absent from them bench.

Hearings are scheduled for three hours daily over four days from Monday to Thursday, making it one of the longest cases ever heard by the SCC. It also involves over 40 appellants, respondents and intervenors, the most in the Court’s 150-year history.

Before hearings began, a few dozen opponents of Bill 21 demonstrated in front of the Supreme Court building.

National Post

cnardi@postmedia.com

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