Supreme Court of Canada agrees to hear legal challenge to Quebec’s secularism law

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The Supreme Court of Canada has thrust itself into a political debate over the Charter of Rights and Freedoms and provincial power, saying Thursday it will hear a landmark case on Quebec’s secularism law and its use of the notwithstanding clause to override rights.

The case, which could be heard this fall, is set to become the court’s most significant review of the Charter’s controversial Section 33, the notwithstanding clause, since the late 1980s. The eventual ruling will shape the extent to which courts across the country may – or may not – rebuke elected legislators when governments choose to override the Charter rights of Canadians.

At issue is Quebec’s Bill 21, enacted in 2019. The law aims to promote secularism in the province. It bans public-sector workers, including teachers and police, from wearing religious symbols such as crosses or hijabs at work. Quebec shielded Bill 21 with Section 33 and has twice defeated challenges in the lower courts.

The political fight around the Supreme Court case ignited immediately on Thursday morning after the top court said yes to a hearing. Quebec called pending federal intervention at the top court “an attack” on the province’s autonomy. The federal Liberals said they would “defend the Charter” as an intervener in the case. The Conservatives have said they oppose Bill 21 but support Quebec’s unfettered power to use Section 33.

In Quebec, Bill 21 continues to garner more support than dissent, according to polls, but has upended the lives of numerous Quebeckers.

Quebec has won two court battles for overriding Charter rights to implement its secularism law. Now the fight hits the Supreme Court

Ichrak Nourel Hak, who is Muslim and wears a hijab, was forced out of her job as a teacher in 2021. It was, she said, “a painful and deeply unjust experience.” She is part of one of six groups appealing to the Supreme Court.

“My fight is not just for myself but for all those who are marginalized or discriminated against because of their beliefs, appearance or identity,” said Ms. Nourel Hak in an interview.

Amrit Kaur, a Sikh who wears a turban, left Quebec to teach in British Columbia. She is part of another group challenging Bill 21 at the Supreme Court. She grew up in Quebec and questions the province’s politics of the past decade.

“There’s been a fundamentalist view on social liberties, including religion, where minorities such as myself can’t be trusted to do their job impartially,” said Mrs. Kaur in an interview. “It’s not based on evidence. In all the other provinces, it’s not an issue.”

The Coalition Avenir Québec government, however, insists Bill 21 protects an essential part of the province’s identity and says its autonomy is at stake.

“Quebeckers have chosen secularism,” Quebec Justice Minster Simon Jolin-Barrette said in a statement on Thursday. Bill 21, he continued, represents the culmination of decades of debate.

The law has been wrestled over in public and the courts since 2019 but lands on the national stage at a moment of potential change in Ottawa, with an election this spring or, at the latest, this fall.

Quebec’s Appeal Court upholds Bill 21, which bans public officials from wearing religious symbols

The federal Liberals avoided confronting Quebec before the case reached the Supreme Court. On Thursday they suggested they would challenge Quebec’s pre-emptive use of the notwithstanding clause, invoking it when Bill 21 was passed, before the courts had a say.

Justice Minister Arif Virani said Ottawa’s legal approach, under the Liberals, would argue how fundamental rights “should be interpreted” in the context of Section 33. “We are going to defend the Charter that we helped created over 40 years ago,” Mr. Virani said to reporters.

The Conservatives didn’t respond to requests for comment. Leader Pierre Poilievre has said he opposes Bill 21 but he and his party unanimously voted yes in early 2023 to a Bloc Québécois motion in the House of Commons that said “it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.” Mr. Poilievre has also said the Conservatives, if elected, would be the first governing party to use Section 33 federally, on criminal justice issues.

The Supreme Court deliberated for an unusually long time whether to hear the Bill 21 case. Chief Justice Richard Wagner has a deep understanding of the legal and political dynamics. He is a Montrealer who joined the top court in 2012 after eight years on Quebec’s superior and appeal courts. His father, Claude, was Quebec’s justice minister in the mid-1960s.

Quebec’s latest Bill 21 ruling fuels debate on notwithstanding clause

Last February, the Quebec Court of Appeal upheld Bill 21. It was clear about the government’s broad ability to use Section 33. The appeal court refused to say whether Bill 21 contravened any Charter rights and said there is “no reason” to further consider the issues because Section 33 was properly invoked.

The six groups appealing Bill 21 at the Supreme Court are challenging the law on a variety of legal grounds.

The English Montreal School Board is focused on minority language educational rights, a Charter section the notwithstanding clause does not override.

The group Ms. Nourel Hak is a part of includes the National Council of Canadian Muslims and the Canadian Civil Liberties Association. In their appeal last year, they urged the Supreme Court to “clarify the extent to which ordinary provincial legislatures can alter Canadians’ most fundamental rights without judicial oversight.”

This view believes courts should be able to declare a law violates rights even if it is protected by the notwithstanding clause.

The Civil Liberties Association wants the top court to go further, saying that Bill 21 “should be struck down.”