A crowd gathers outside the Supreme Court of Canada building in Ottawa on the first day of hearings over Quebec's Bill 21.Sean Kilpatrick/The Canadian Press
The landmark Supreme Court of Canada hearing on Quebec’s secularism law and the limits of government powers to curtail Canadians’ rights began Monday with a series of calls to declare the province’s law unconstitutional.
At issue at the top court is Quebec’s Bill 21, enacted in 2019, and the notwithstanding clause in the Charter of Rights and Freedoms.
The law prohibits public-sector workers, including teachers, from wearing religious symbols such as a hijab or a cross on the job. The Quebec government shielded Bill 21 from court challenges with the notwithstanding clause, which allows politicians to override an array of rights in the Charter. The law was twice upheld in the lower courts.
The challengers to Bill 21 have a two-pronged goal: They want the Supreme Court to strike down the law, but are also seeking significant, broader changes. These could include potential restrictions imposed by the top court on how governments can use the notwithstanding clause, or a finding on whether courts can issue judicial declarations of rights violations, even if the clause is used. An eventual ruling in the case will shape key questions of how the Charter operates for years to come.
“The backdrop of this case is religious symbols, but the true issue is the limit on legislative power on the one hand and judicial power on the other,” David Grossman, lawyer for one group of appellants, told Supreme Court judges on Monday morning.
Can governments ignore Charter rights? Supreme Court to weigh tough questions in Bill 21 case
The Supreme Court hearing is scheduled over four days this week, one of the longest in the court’s history, and it marks the top court’s most detailed examination of the notwithstanding clause since the Charter became part of the Constitution in 1982. The clause was rarely used for decades, but since 2018, it has become a popular political tool in some conservative-led provinces.
Judges on the top court, in front of a packed courtroom, expressed skepticism in some of their questions about the legal arguments presented by various appellants on Monday.
Chief Justice Richard Wagner, who grew up in Montreal and worked there as a lawyer and judge before he was named to the Supreme Court in 2012, offered no obvious indications of his thinking, but on three different occasions highlighted and detailed Quebec’s long history with religion.
He spoke of the Quiet Revolution in Quebec in the 1960s, during which people of the province and institutions, such as hospitals and schools, shifted away from the control of the Catholic Church.
“That’s a distinct reality in Quebec that does not exist elsewhere,” Chief Justice Wagner said to one of the appellants.
Later, to another appellant, he said: “Don’t you agree that the reality in Quebec is very different than the history in the rest of the country?”
Near the end of the Monday session, he made the point about religion and society in Quebec for a third time. Speaking in French, he concluded: “The church had a huge influence.”
Sean Kilpatrick/The Canadian Press
The court on Monday heard from six groups of appellants who had previously lost in the lower courts in Quebec. On Tuesday, the Quebec government makes its case to once more defend Bill 21. On Wednesday, the federal government and several provinces, including Ontario, Alberta and British Columbia, present their arguments. Then come about three dozen outside intervener groups, later Wednesday and on Thursday.
Of the three hours of arguments presented on Monday, the liveliest exchange between the judges and an appellant came during the 30 minutes allotted to Frédéric Bérard, counsel for the Fédération autonome de l’enseignement, a group of Quebec teachers’ unions.
Mr. Bérard argued that the Supreme Court needs to reconsider the 1988 Ford precedent. That ruling, of which the notwithstanding clause was a small part, generally endorsed governments’ unfettered use of the power to curtail rights. He cited an erosion of civil rights in countries around the world and the common usage of the notwithstanding clause in Canada in recent years as reasons to reconsider precedent.
The judges challenged Mr. Bérard on how far he wanted the Supreme Court to go in its eventual judgment. Chief Justice Wagner asked Mr. Bérard if he wanted the court to overturn Ford, or more simply, add to it. Justice Suzanne Côté wondered, speaking in French, whether he was calling on the court to effectively impose a new constitutional amendment to deal with what Mr. Bérard deemed was a new reality of rights in peril.
Mr. Bérard insisted the court needs to act: “We are at a crossroads in terms of what Canada’s constitutional democracy looks like.”
Opinion: The Supreme Court will rule on Bill 21. Canada’s future may well hang in the balance
Before the hearing on Monday, in the court’s grand entrance hall, former Quebec teacher Ichrak Nourel Hak – a Muslim woman who wears a hijab – spoke about the stakes of the case. She has been part of the legal challenge to Bill 21 since the start in 2019.
Bill 21 “divides society,” said Ms. Hak in French. “It has sent a clear message: some people are less legitimate than others in the public sphere. And it is primarily women who are paying the price.”
Seven judges on the Supreme Court, rather than the full nine, are hearing the Bill 21 case.
Justice Mahmud Jamal had previously recused himself, because of a past connection with one of the appellant groups.
Chief Justice Wagner chose the most junior judge, Mary Moreau, to sit out the case, as to avoid a tie vote when a judgment is rendered.
But among the seven sitting judges is Justice Sheilah Martin, who retires on May 30. She is allowed to participate in judgments until the end of November.
That means the landmark ruling on Bill 21 and the notwithstanding clause could be issued by that point – which would be unusually rapid for such a major judgment. But if it is released after November, Justice Martin will end up listed as having not participated in the final disposition of the ruling – meaning only six judges would be formally named on what will likely be a new precedent.
On Monday, Justice Martin, along with Justices Andromache Karakatsanis and Michelle O’Bonsawin, didn’t ask any questions. Justice Malcolm Rowe led the way with well more than a dozen interjections. Justices Nicholas Kasirer and Côté, both from Quebec, also asked a number of questions. Chief Justice Wagner jumped in with questions several times.