Crowds gathered outside the Supreme Court building Monday for the landmark hearings on Quebec's secularism law, also known as Bill 21.Sean Kilpatrick/The Canadian Press
The Quebec government defended its secularism law on Tuesday at the Supreme Court of Canada, as judges of the top court asked numerous questions that indicated a potential willingness to expand on a long-established precedent.
Quebec’s Bill 21 is in the legal spotlight. It became law in 2019 and prohibits public-sector workers, including teachers, from wearing religious symbols such as a hijab or cross on the job.
The law was twice upheld in the lower courts because Quebec had shielded it from legal challenges using the notwithstanding clause in the Charter of Rights and Freedoms. The clause overrides 10 sections of the Charter, including freedom of religion and the right to equality.
The four-day Supreme Court hearing this week, one of the longest in the top court’s history, is the most detailed examination of the notwithstanding clause since the Charter became part of the Constitution in 1982. The eventual judgment will likely shape the boundaries between government powers and Canadians’ rights for years to come.
On Tuesday, Quebec government lawyer Isabelle Brunet said the notwithstanding clause was a crucial political compromise in the early 1980s that led to the patriation of Canada’s Constitution, and the top court should not tamper with it.
The case weighs Canadians' Charter rights against government power.Sean Kilpatrick/The Canadian Press
When governments use the clause, there is no role for the courts to intervene, Ms. Brunet said. It was a direct response to the six groups challenging Bill 21, who argued on Monday that the law should be struck down and the Supreme Court should impose limits on the clause, as well as allow judges to issue rulings on rights violations.
“It is not up to the court to answer a political question that does not concern the courts,” Ms. Brunet told the seven judges of the Supreme Court who are hearing the landmark case.
The heart of the hearing on Tuesday was the judges’ interest in exploring a possible expansion of a 1988 precedent. In a case called Ford, where the notwithstanding clause was a small part, the Supreme Court had approved governments’ mostly unfettered use of the Charter override tool.
Yet, in recent years, there has been a legal debate about whether the Ford decision had answered all questions about the clause.
On Monday, when challengers of Bill 21 called for the Supreme Court to reconsider the Ford precedent, the judges had sounded wary of touching Ford’s core finding – that governments can use the notwithstanding clause as they see fit.
Can governments ignore Charter rights? Supreme Court to weigh tough questions in Bill 21 case
On Tuesday, however, the three Quebec judges asked a series of questions on what are called judicial declarations. This would allow a court to declare a violation of rights, even if a law is protected by the notwithstanding clause and is allowed to stand.
Quebec, and other conservative-led provinces such as Ontario and Alberta, are resolutely against the idea. They argue the clause fully shuts out any role for the courts. But others, including the federal government, British Columbia and Manitoba, support judicial declarations.
The questions from the bench on Tuesday were led by Justice Nicholas Kasirer. He was law school dean at McGill University in the 2000s before he became a judge in Quebec. He was named to the Supreme Court in 2019.
In one question about judicial declarations, he asked whether the court might “complement rather than change” the Ford precedent.
Chief Justice Richard Wagner, who is from Montreal and has deep Quebec roots, in a question on Tuesday touched on what some Bill 21 challengers had said on Monday: that a declaration of a rights violation from a judge could “inform the electorate” and provide a role for judicial review when the notwithstanding clause is used.
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Quebec repeatedly parried such suggestions by returning to its central point: The clause means the courts are sidelined, and judicial declarations run directly counter to the purpose of the clause’s power.
“That kind of approach would lead the courts into the political sphere – and that is not the role of the courts,” said Ms. Brunet.
The hearing on Wednesday continues with the federal government up first, and then Ontario, Manitoba, B.C., Saskatchewan and Alberta. Ottawa plans to call on the court to impose, for the first time, limits on repeated use of the clause. The provinces all oppose such a move from the Supreme Court.
The dynamics so far among the judges are a topic of much discussion between lawyers outside the courtroom in Ottawa.
For the second day in a row, the two Ontario judges on the case – Justices Andromache Karakatsanis and Michelle O’Bonsawin – did not ask a single question. Neither did Justice Sheilah Martin from Alberta. She retires on May 30 and can participate in deliberations until the end of November.
Under Chief Justice Wagner, the judges routinely convene for a meeting before each hearing. It is a new practice and judges can use the time to talk about their thinking and plan for that day’s hearing.
This week, most of the questions have come from the three Quebec judges, Chief Justice Wagner and Justices Kasirer and Suzanne Côté. Justice Malcolm Rowe from Newfoundland has also asked a number of questions, most of them on Monday.
Judicial declarations and the notwithstanding clause have been widely debated in the legal world since 2019, after a trio of experts argued in Policy Options that the clause doesn’t preclude a judge from calling out a rights violation. Justice Kasirer on Tuesday referred to that analysis in one of his questions.
He also noted the Saskatchewan Court of Appeal last year endorsed judicial declarations. That case, which involves transgender youth and pronouns at school, is under appeal at the Supreme Court but a hearing is not yet scheduled.
In an earlier Bill 21 ruling, the Quebec Court of Appeal had rejected judicial declarations when the notwithstanding clause is used. The appeal court said in 2024, when it upheld Bill 21, that the clause limits judicial review.
That means it’s not up to a judge to decide whether a law such as Bill 21 may violate freedom of religion or the right to equality.
“Any notion of redress – including declaratory relief – is thus excluded,” the Quebec appeal court concluded.