The hearing will be one of the biggest cases the Supreme Court has adjudicated in years because it revolves around the notwithstanding clause.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada has tentatively scheduled its landmark hearing on Quebec’s secularism law and potential limits on the Charter’s notwithstanding clause for March.
The court’s registry office on Monday advised lawyers involved in the case that the hearing has been set within the timeframe of March 16 to 27. The notice underlined the word tentatively and said the hearing date will be confirmed or adjusted as the court determines its schedule.
The hearing will be one of the biggest cases the Supreme Court has adjudicated in years because it revolves around Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause. The clause allows governments to override 10 sections of the Charter – such as freedom of religion and the right to a lawyer if arrested. The eventual ruling will be the final word from the bench on governments’ power to quash the rights of Canadians in legislation.
The Supreme Court in January agreed to hear the case and all legal arguments have been filed. Chief Justice Richard Wagner in June said the case would likely be scheduled over three days.
Supreme Court agrees to hear appeal of Saskatchewan’s school pronoun case
This is the first time the Supreme Court has considered Section 33 in depth since the late 1980s. Governments’ use of the clause fell out of favour for years thereafter but in the late 2010s some conservative-led provinces started using it again. Alberta and Quebec both used it in laws in late October.
At issue at the Supreme Court is a 2019 law in Quebec known as Bill 21. It bans some public servants, including teachers, from wearing religious symbols such as hijabs or crosses on the job. The law aims to promote secularism in the province. Quebec has repeatedly called the case at the top court an attack on its political autonomy within Canada.
The notwithstanding clause helped the Quebec provincial government win twice in the lower courts against legal challenges, first in 2021 at the Superior Court of Quebec and then in 2024 at the Quebec Court of Appeal. At the Supreme Court, Quebec is the respondent and there are six groups of appellants.
With the Bill 21 case tentatively scheduled, a big question that legal experts are eyeing is the roster of Supreme Court justices that hear the case. Chief Justice Wagner makes this decision, and it is revealed the first day of the hearing, as the justices enter the courtroom in Ottawa.
Supreme Court under fire for ruling against mandatory-minimum sentences in child-porn case
In mid-2024, Justice Mahmud Jamal recused himself from the Bill 21 case for a potential conflict of interest, as the court considered whether to hear the appeal. He had been on the board of directors of the Canadian Civil Liberties Association from 2006 to 2019 and served as chair from September 2018 to June 2019. He also worked as a pro bono counsel for the group.
Civil Liberties is one of the appellants in the Bill 21 case. Justice Jamal became a judge on the Ontario Court of Appeal in June 2019 and was named to the Supreme Court in 2021.
Legal experts presume Chief Justice Wagner will sit seven judges on the Bill 21 case rather than eight – to avoid a tie. This means the choice of whom to leave out could be telling.
The Bill 21 case involves a wide range of legal questions.
Among them is whether courts should be able to declare a law violates Charter rights, even if the law is allowed to stand because of the notwithstanding clause. The Quebec appeal court ruled against judicial declarations.
The Decibel: The fight over the notwithstanding clause
In September, the federal government – an intervener in the case – argued in favour of judicial declarations, as have a number of other parties in the case.
Last week, the Supreme Court agreed to hear a separate case on the notwithstanding clause from Saskatchewan. It stems from a 2023 law that used the notwithstanding clause and requires parental consent at school when children younger than 16 want to change their name or pronouns.
On a narrow point of law, the Saskatchewan Court of Appeal in August said judges could make a declaration of rights violations on laws that use the clause, the opposite conclusion of the Quebec Court of Appeal. The Saskatchewan case has not been scheduled.
In the Bill 21 case, the federal government also made a proposal to the Supreme Court, calling for judicial reviews of laws when governments use the notwithstanding clause multiple times.
If the Supreme Court accepted this proposal, it would mark the first substantive limits on the clause since it became part of the Constitution in the Charter in 1982. The idea angered conservative-led provinces, who demanded Ottawa withdraw the proposal.