The Supreme Court will hold a four-day hearing starting March 23 to consider legal arguments for and against Quebec’s secularism law.Sean Kilpatrick/The Canadian Press
Challengers to Quebec’s Bill 21 argue the law infringes on several sections of the Charter of Rights and Freedoms, including freedom of religion and the right to equality, according to new legal filings at the Supreme Court of Canada.
The government of Quebec rejected the arguments and said the Supreme Court shouldn’t even consider the question because of the Charter’s notwithstanding clause.
Bill 21 is a law passed in 2019 that prohibits public sector workers in Quebec, including teachers, from wearing religious symbols such as a hijab on the job. The provincial government shielded the law from court challenges by using the notwithstanding clause, which overrides an array of rights and freedoms.
The Supreme Court, starting March 23, will hold a landmark hearing over four days to consider an array of legal arguments for and against Bill 21.
In mid-February, however, the top court made an unusual move: It asked the main parties to submit specific arguments about whether Bill 21 infringes on the Charter freedoms of religion and expression, as well as the right to equality.
This request was made despite the fact the province invoked the notwithstanding clause, which overrides those rights and freedoms, along with numerous others. The lower courts in Quebec twice sided with the provincial government and against challengers to Bill 21 in rulings that upheld the law. The notwithstanding clause was essential in Quebec’s court victories.
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In legal filings on Monday, the half-dozen groups that have called on the Supreme Court to reverse the lower-court decisions and strike down Bill 21 all said the law is a clear violation of freedom of religion, freedom of expression, and the right to equality.
These filings come on top of volumes of broader arguments submitted last year.
The National Council of Canadian Muslims and Canadian Civil Liberties Association said it is an “inescapable conclusion” that Bill 21 violates freedom of religion, citing evidence from the initial 33-day trial in Quebec in late 2020. They also said the law’s “disproportionate impact on religious persons” shows how it infringes on the right to equality.
Challengers to Bill 21 also said the violations couldn’t be justified under Section 1 of the Charter, which allows reasonable limits on rights and freedoms. The groups said Quebec failed to show a pressing and substantial purpose for Bill 21.
The Bill 21 case will weigh, for the first time in almost four decades, the boundaries of government powers to override the rights and freedoms of Canadians. Governments for years had not used the notwithstanding clause but since the late 2010s it has become a favoured tool of some conservative-led provinces.
The one Supreme Court precedent on the clause, the 1988 Ford case, endorsed governments’ unfettered use of the clause.
Challengers to Bill 21 want the Supreme Court to reconsider the 1988 Ford precedent.
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In the Quebec government’s legal filing on Monday, it said the Ford precedent meant that the Bill 21 case in the lower courts did not consider rights violations because of the notwithstanding clause.
Quebec said the Supreme Court should “refrain from doing so in the circumstances” of the Bill 21 case. The provincial government said its use of the clause “does not allow for an analysis and resolution of the constitutional questions posed by the court.”
One potential change around the notwithstanding clause at the Supreme Court is what are called judicial declarations. This would mean courts could issue rulings that declare an infringement of Charter rights in laws that are protected by the notwithstanding clause, even as the law would be allowed to stand.
Numerous groups support judicial declarations, as do the federal Liberal government, and the NDP governments in British Columbia and Manitoba. Conservative governments in Quebec, Ontario and Alberta oppose them.
Legal experts say that the Supreme Court’s mid-February request for legal arguments on whether Bill 21 specifically violates Charter rights is a potential step toward issuing a judicial declaration on the law, as the top court gathers detailed information on the questions.