People gather outside the Supreme Court as it hears appeals on Quebec’s secularism law, Bill 21, in Ottawa, March 23. The four-day hearing concluded on Thursday and was one of the longest hearings in the Supreme Court's history.Sean Kilpatrick/The Canadian Press
The landmark Supreme Court hearing over four days this week on Quebec’s secularism law, Bill 21, and the notwithstanding clause in the Charter of Rights and Freedoms was one of the longest in the top court’s history.
1. What is the situation and the stakes?
- In 2019, Quebec enacted Bill 21, a law to promote secularism. It prohibits public sector workers, including teachers, from wearing religious symbols such as a hijab on the job.
- Quebec shielded the law from court challenges with the Charter’s notwithstanding clause. That allows governments to override many Charter rights.
- Challengers to Bill 21 insist it violates freedom of religion and the right to equality but the law was twice upheld in the lower courts in Quebec because of the notwithstanding clause.
At the heart of the case this week, and the judges’ deliberations in the months ahead, is the balance between government powers and Canadians’ rights.
Quebec insists the top court take a hands-off approach and respect the generally unfettered power of elected governments to use the notwithstanding clause.
Challengers to Bill 21 want the law struck down and the top court to impose new limits on the clause. Minority rights are under attack, they say, such as those of Muslim women who wear a hijab and can’t be teachers in Quebec.
“It’s pulling the court in two directions,” said Arif Virani, former federal Liberal justice minister and senior counsel at Torys LLP. “It’s something they’ll struggle with.”
2. Will the Supreme Court strike down Bill 21?
Several legal experts say such an outcome is unlikely. The wording of the notwithstanding clause, and a 1988 Supreme Court precedent called Ford, indicate Quebec’s use of the Charter override is legitimate.
Peter MacKay, a former federal Conservative justice minster, observed “an almost express skepticism” from judges this week in their questions to the challengers of Bill 21 and the idea that the notwithstanding clause should be limited.
“This has far-reaching implications for the provinces, at a time when the provinces and the federal government are at odds on some big issues,” said Mr. MacKay, a lawyer at McInnes Cooper in Halifax.
On Thursday, the hearing’s last day, Chief Justice Richard Wagner suggested the judges had not been swayed by arguments of future abuses of the clause. “I don’t think that this case will be disposed of by extremist or catastrophic scenarios,” he said of the thinking behind eventual judgment.
Justice Malcolm Rowe added: “We’re not teetering on the edge of the precipice of fascism.”
3. If Bill 21 is upheld, what else could happen?
The Supreme Court is weighing what are called judicial declarations. This could see judges issue rulings that a law protected by the notwithstanding clause violates a Charter right, even as the clause prevents courts from overturning such laws.
Lorraine Weinrib, a law professor emerita at the University of Toronto, was the Ontario government lawyer in the Supreme Court’s 1988 Ford case. That ruling is the one big precedent on the notwithstanding clause but the top court back then did not consider every legal angle like the judges did this week.
One unanswered question is whether judicial declarations are allowed if the clause is used. Prof. Weinrib said such rulings would be valuable, so people affected could “know whether your rights are being infringed.”
4. When will the judgment land?
By the end of November – or at some point in 2027.
Justice Sheilah Martin retires on May 30 and can be part of Bill 21 deliberations until late November. That’s led some experts to suggest a judgment could land by that point. If it arrives thereafter, only six judges would be officially listed as having adjudicated the case.
This Supreme Court, however, often takes a year or so to deliver rulings on big cases. And there’s a related pending Supreme Court case on the notwithstanding clause and judicial declarations from Saskatchewan that will probably be heard this fall.
That means some experts think Bill 21 and the Saskatchewan case could be announced together – underlining the national scope of the issues – sometime later next year.
Another factor is the pressure on the Supreme Court to speak with a united voice, rather than putting out a split decision. Landmark decisions in the past, such as the 1998 Secession reference case on the potential separation of Quebec, were unanimous and delivered by “The Court.”
This will be on the judges’ minds, said Mr. Virani, the “gravitas and authority” a collective decision would have across the country given the stakes involved. But whether this Supreme Court, where dissent is common, can get there is unclear. “That,” said Mr. Virani, “is up to the judges.”
5. Three of the seven judges hearing the case didn’t ask any questions. Why?
Questions from the bench this week came from the three Quebec judges – Chief Justice Wagner and Justices Nicholas Kasirer and Suzanne Côté – and Justice Rowe. Justices Martin, Andromache Karakatsanis and Michelle O’Bonsawin were silent throughout the four days. A court spokesman declined comment.
At the 1998 Secession hearing, the judges saved their questions until the last of four days – but told everyone the plan on Day 1.
Gerard Kennedy, associate law dean at the University of Alberta, said the silence of Justices Karakatsanis and Martin, veterans of big Charter cases, was “very strange.” He further described it as odd that their voices were absent from “one of the most important cases in Canadian history.”
“These jurists are known to have a particularly liberal understanding of Charter rights and the court’s role in protecting them,” Prof. Kennedy said.