The Supreme Court will hear a challenge to Quebec’s secularism law and its use of the notwithstanding clause to override rights.Adrian Wyld/The Canadian Press
A record number of groups have been given standing to present legal arguments at the Supreme Court of Canada as it hears a challenge to Quebec’s secularism law, a case that could reshape how governments across the country use the Charter’s notwithstanding clause.
At issue is Quebec’s Bill 21, a 2019 law that bans public-sector workers, including teachers and police, from wearing religious symbols such as hijabs or crosses at work. The Quebec government used Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause, to shield the law from legal challenges.
The notwithstanding clause allows a government to override fundamental rights such as freedom of religion. Courts in Quebec have twice upheld Bill 21, rejecting an array of legal challenges and ruling the province’s use of the notwithstanding clause was valid. Last January, the Supreme Court agreed to take on the politically explosive case.
Last week, Chief Justice Richard Wagner granted standing to 38 outside groups – interveners – to file their legal views, which are due in mid-September.
It is a record number of interveners, according to Supreme Advocacy, an Ottawa-based firm that closely tracks the top court. Interveners include the Canadian Council of Muslim Women and the Ontario Human Rights Commission.
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Six main groups are contesting the Quebec Court of Appeal’s decision to uphold Bill 21. The 38 interveners are also mostly against Quebec’s use of the notwithstanding clause. The appellants and the interveners are calling on the Supreme Court to rule against Quebec and curtail governments’ use of Section 33 to override rights.
The record number of interveners adds to an already unruly case, which will deal with complicated legal and constitutional issues. The Supreme Court’s judgment could be deeply divisive: Quebec Premier François Legault has repeatedly said the province’s autonomy is at stake.
The Quebec Court of Appeal, a trio of judges that included Chief Justice Manon Savard, unanimously ruled last year that Section 33, as written, precludes judicial intervention. Maxime St-Hilaire, a law professor at the University of Sherbrooke, has argued in academic papers this interpretation of Section 33 is correct.
Prof. St-Hilaire said it is worrying that the Supreme Court didn’t strike fairer balance in the interveners.
“It doesn’t look like the court wants to make it look less political,” Prof. St-Hilaire, in an interview, said of the Supreme Court granting standing to all 38 interveners.
A number of interveners, including the Federation of Ontario Law Associations and Egale Canada, plan to argue that courts should be able to issue declarations that individual rights have been violated, even if a government protects a law with the notwithstanding clause. What that would mean is a court could uphold a law such as Bill 21, because of the notwithstanding clause, but also rule that Bill 21 violates freedom of religion.
This view, however, runs directly counter to last year’s 295-page ruling from the Quebec Court of Appeal, which supported the Quebec government’s broad ability to use Section 33. The appeal court refused to rule on whether Bill 21 contravened Charter provisions that the notwithstanding clause overrides.
Interveners at the Supreme Court usually get to file 10 pages of legal arguments before a hearing and at the hearing speak for five minutes, by video conference, after the main parties have finished in-person arguments.
The goal of accepting interveners is for the Supreme Court to make sure it hears from a range of relevant voices.
The federal and six provincial governments are also interveners, as of right, because there are constitutional questions in the mix.
Ottawa has said it is concerned about the pre-emptive use of the notwithstanding clause, as Quebec did with Bill 21 to sidestep the courts. The provinces are concerned about their powers being diminished.
In a mid-July filing to the Supreme Court from the six provincial attorneys-general, including Ontario, British Columbia and Alberta, it was noted most of the 38 interveners are aligned with the six appellants and are generally seeking to “impose new conditions and requirements” on governments’ use of Section 33.
“Many of the constitutional issues raised are novel and complex,” the provincial attorneys-general said in a court filing.
Quebec in late May had asked the top court to say no to about a third of the interveners. The province in a court filing argued that some were trying to add new evidence and others did not have a relevant stake in the matter.
A spokeswoman for Quebec’s justice ministry this week said the province had no comment on the top court’s decision on the interveners, out of respect for the judicial process.
There is a debate in the legal community about how many outside interveners should be allowed into cases at the appeal courts across Canada.
In 2017, in a case about accrediting a proposed Christian law school, the court initially disallowed the majority of 26 proposed interveners, but four days later added a second day to the hearing and allowed all of them.
The top court does not automatically allow interveners. Last year, in a big case on sex work laws, Justice Malcolm Rowe said yes to 11 interveners and no to seven others.
The record number of Bill 21 interveners reflects the importance of the case and avoids potential criticism that certain voices will be silenced, said Thomas Slade, a partner at Supreme Advocacy in Ottawa.
“Even if it results in a potential imbalance in perspectives, the court is used to navigating a broad spectrum of views and distilling what is legally relevant,” said Mr. Slade, whose firm is working with several groups in the Bill 21 case.
Earlier this month, a veteran judge on the Federal Court of Appeal in a ruling said no to proposed interveners in a case at that court and offered a critique of allowing too many outside groups into a hearing.
Justice David Stratas wrote that some courts in Canada “just about always” say yes to interveners and “welcome just about anyone into a case and let them raise just about anything loosely or remotely connected to the case, often with little legal content.”
The Supreme Court has not yet scheduled the Bill 21 hearing.