Lawyer Frédéric Bérard speaks to reporters in the foyer of the Supreme Court of Canada following appeals on the constitutionality of Quebec’s controversial secularism law known as Bill 21 in Ottawa on Thursday.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada on Thursday concluded one of the longest hearings in its history as more than two dozen outside groups put forth a panoply of arguments about Quebec’s secularism law and the Charter of Rights and Freedoms.
As the hearing ended, Chief Justice Richard Wagner said the court would issue its judgment at some point in the future, without providing details.
“The court will take the necessary time to review all of the issues thoroughly,” he told the full courtroom before the judges departed.
In 2019, Quebec enacted Bill 21. It prohibits public-sector workers in positions of authority from wearing religious symbols on the job.
The province shielded the law from court challenges with the Charter’s notwithstanding clause. It allows governments to override large parts of the Charter – including freedom of religion and the right to equality.
Appellants challenging Bill 21 at the Supreme Court argue that the law is a blatant violation of such rights, but it was twice upheld in the lower courts because of the notwithstanding clause.
This week marked the most in-depth consideration of the notwithstanding clause at the Supreme Court since the Charter became part of the Constitution in 1982. The eventual ruling will shape how the Charter operates, and delineate the extent of government powers to ignore rights, for years to come.
Whether there should be any limits on the clause was the central issue at this week’s hearing, but the four days of arguments were something much bigger than a single law. The array of angles and nuances discussed and debated was dizzying, from numerous sections of the Charter to laws that existed before Confederation.
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All of it had been first staked out on Monday, when challengers to Bill 21 had three hours to sway the seven judges of the Supreme Court hearing the case. Quebec defended Bill 21 on Tuesday. On Wednesday, the federal government and several provinces delivered their arguments, followed by outside intervenor groups, which continued on Thursday.
One question throughout the week involved what are called judicial declarations, through which a judge could rule that a law violates a Charter right, even as the law is allowed to operate because of the notwithstanding clause. The federal government and numerous others support such a change. Quebec is fully against any interference from the courts if the clause is used, as are Ontario, Alberta and Saskatchewan.
On Thursday, many intervenors wanted the court to take some action against Bill 21.
The Canadian Council of Muslim Women, like other intervenor groups, had five minutes to address the judges by Zoom. Sahar Talebi, the group’s lawyer, said Muslim women face the greatest exclusion from public-sector work by Bill 21, in sectors such as education.
Ms. Talebi urged the judges to endorse judicial declarations so that future courts can rule on a law’s discrimination against Muslim women and “the harm that they endure as a marginalized group.”
Other big legal questions included Section 23 of the Charter, on minority language education rights, and whether English-speaking schools in Quebec should be subject to Bill 21. There were also significant questions about the meaning and power of Section 28, on gender equality rights. Another issue raised again on Thursday is whether a government can deploy the notwithstanding clause pre-emptively – as Quebec did in 2019 with Bill 21 – before a court has ruled against it.
Ottawa clashes with Ontario, Alberta over notwithstanding clause at Supreme Court Bill 21 hearing
Intervenors in the Bill 21 case – a record number of more than three dozen on Wednesday and Thursday – represented a wide spectrum of Canadian society, from labour groups and civil-rights activists to constitutional scholars and lawyers’ organizations.
“The sheer number and diversity of participants reflect the reality that the case has grown far beyond a dispute over Quebec’s secularism law,” Christine Van Geyn, interim executive director of the Canadian Constitution Foundation, observed last week before the hearing began.
The foundation on Thursday was an intervenor and argued that the Supreme Court should take a hands-off approach to the notwithstanding clause. George Avraam, the group’s lawyer, said the clause makes laws “immune from Charter scrutiny.”
Most Supreme Court hearings take place in a morning. Bill 21’s four-day hearing matches the 1998 Secession reference case, when the potential separation of Quebec was argued. The Patriation reference in 1981, ahead of bringing the Constitution home to Canada from Britain, featured five days of hearings.
On Thursday, the dynamics of the judges asking questions were the same as earlier this week.
Justice Malcolm Rowe, from Newfoundland, took the lead, as he had on Monday. The three Quebec judges, including Chief Justice Wagner, asked a number of questions of the intervenors. The two judges from Ontario, Justices Andromache Karakatsanis and Michelle O’Bonsawin, and Justice Sheilah Martin from Alberta once more did not ask any questions. They had been silent throughout the week.
The hearing ended with the six appellants from Monday getting five final minutes to speak. Frédéric Bérard, counsel for the Fédération autonome de l’enseignement, a group of Quebec teachers’ unions, cited the French writer Albert Camus and his well-known observation that democracy is not the law for the majority but for the protection of minorities.
The Bill 21 case, Mr. Bérard said, is, at its heart, about “respecting fundamental rights.”