Demonstrators waving an upside-down Quebec flag march during a protest in Montreal against the provincial government's Bill 21 on April 7, 2019.Graham Hughes/The Canadian Press
The Supreme Court of Canada, after an unusually long deliberation, will decide Thursday whether to hear a challenge to the ability of governments to override parts of the Charter of Rights and Freedoms in passing laws.
At issue is Quebec’s Bill 21, enacted and in force since mid-2019 and fought in the courts ever since. In its aim to promote a secular Quebec, the bill bans public service workers, such as teachers and police, from wearing religious symbols on the job. The law upended the lives of numerous Quebeckers.
To sidestep freedom of religion, Premier François Legault pre-emptively invoked Section 33 of the Charter, the notwithstanding clause, to shield Bill 21 from legal challenges. The law has survived largely intact, most recently last February in a decisive victory for the provincial government at the Quebec Court of Appeal.
Quebec’s Appeal Court upholds Bill 21, which bans public officials from wearing religious symbols
Six groups want the Supreme Court to hear challenges to Bill 21 on a variety of legal grounds, including minority language educational rights and gender equality rights, two Charter sections the notwithstanding clause does not override.
One of the groups argues the Supreme Court must “clarify the extent to which ordinary provincial legislatures can alter Canadians’ most fundamental rights without judicial oversight.” This view suggests courts should be able to issue a rebuke, declaring a law is a violation of rights even while acknowledging the law is validly protected by the notwithstanding clause.
The Supreme Court has wrestled with the complicated case since last April. The top court typically spends about four months deciding whether it will hear or decline a matter. It has taken almost nine months on Bill 21.
Amrit Kaur, a 33-year-old high school teacher, grew up in Quebec. On the day Bill 21 became law, she graduated from the University of Ottawa with an education degree. Mrs. Kaur, who is Sikh and wears a turban, left Quebec to teach in the Vancouver area for several years.
Mrs. Kaur and the World Sikh Organization of Canada are among those who’ve asked the Supreme Court to hear the case. She put herself in the fray, starting in the lower courts, because she felt Quebec’s debate over secularism excluded a diversity of views.
“It was men talking about how women should dress,” said Mrs. Kaur. She further said wearing a religious symbol in the classroom does not equal proselytizing beliefs and added that while Section 33 provides provinces a degree of political autonomy, that should not “override human rights.”
Opinion: Bill 21 has made immigrants in Quebec grow even more attached to Canada
Last February, when the Quebec Court of Appeal upheld Bill 21, the court was clear about the government’s broad ability to wield Section 33. It 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.
But there is no legal unanimity on that view.
The main Supreme Court precedent, the 1988 Ford case, includes only 14 paragraphs on Section 33, focused on simple technical requirements.
Last February, in a case in Saskatchewan on the government’s use of Section 33 in its law on pronouns in schools and parental consent, a superior court judge concluded the justice system can offer a view on rights violations when Section 33 is used. That issue was argued at the Saskatchewan Court of Appeal last September and a decision is pending.
If the Bill 21 case proceeds at the Supreme Court, the federal Liberals plan to intervene, after avoiding a confrontation with Quebec since 2019. Prime Minister Justin Trudeau has said he opposes pre-emptive use of Section 33, as Quebec did with Bill 21.
The federal election this year could shift the plan. The Conservatives haven’t said what they would do, but party leader Pierre Poilievre has said he opposes Bill 21.
Last April, when the first Bill 21 appeal request was filed at the top court, the province’s Justice Minister, Simon Jolin-Barrette, said: “I suggest the federal government mind its own business.”
Since 2018, after many years when Section 33 was rarely applied, centre-right governments in Ontario, Quebec and Saskatchewan have increasingly used the clause to override rights. Ottawa has never used it but Mr. Poilievre’s Conservatives promise they will on criminal justice, if elected this year.
Federal Justice Minister says notwithstanding clause should ‘always be a tool of last resort’
The Supreme Court is headed by Chief Justice Richard Wagner, a Montrealer who has an intimate understanding of Quebec. He joined the top court in 2012 after eight years on Quebec’s superior and appeal courts.
Peter Biro, who edited a book of essays on Section 33 released last year, believes courts should offer judgments on rights violations even if the override clause is used. But he doubts the top court would consider going further than that if it hears the Bill 21 case.
“If anyone thinks the Supreme Court of Canada will strike down Bill 21 because it violates rights, they are sadly mistaken,” Mr. Biro said.