What’s at stake as Supreme Court hears challenge to Quebec’s Bill 21

The Supreme Court of Canada this week began hearing a challenge to Quebec’s secularism law known as Bill 21, a case that could spur ripple effects across the country — most notably the notwithstanding clause in the Charter of Rights and Freedoms.

The case stems from a 2019 Quebec law that, in the name of state secularism, bans certain public-sector workers — including teachers, police officers and judges — from wearing religious symbols on the job.

The concept is known as laïcité in Quebec, where it has been a longstanding core tenet since the Quiet Revolution, which pushed back at the power and influence of the Catholic Church in Quebec society during the 1960s and 1970s.

Legault’s government pre-emptively invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms to shield the law from most court challenges over fundamental rights violations.

Constitutional law experts say the case will result in a major new legal precedent no matter which way the court rules.

“I could not make a prediction. There are so many different possibilities,” said Joel Bakan, a professor at the University of British Columbia’s Allard School of Law.

Here are some of the issues at play in the case.

The notwithstanding clause, contained in Section 33 of the Charter, allows a province or territory to override certain fundamental rights like freedom of religion, expression and peaceful assembly, as well as protection from discrimination.

A Quebec French language law in the 1980s led to the most recent court precedent over the use of the notwithstanding clause in what’s known as the Ford decision.

That decision allowed the legislature to use Section 33 to suspend certain rights without having to justify its actions, which experts like Bakan have called a “blank cheque” approach.

There is only one limit to the clause — it sunsets, and therefore must be renewed every five years.

The Quebec government has already renewed Bill 21 for another five-year period in 2024.

In recent years, provinces including Ontario, Alberta and Saskatchewan have invoked the notwithstanding clause to pass legislation stopping teacher strikes and setting new guardrails for gender-affirming care, among other issues.

A challenge to Saskatchewan’s use of Section 33 for a bill requiring schools to obtain parental consent before recognizing a child’s new gender identity is also before the Supreme Court.

That case has raised the question of whether courts have a historic right to check or limit government actions that is independent of the notwithstanding clause.

“What we’ve seen to this point in Ontario, in Saskatchewan, in Alberta, in Quebec, is governments either invoking or threatening to invoke Section 33 for any reason at all … without guardrails,” Bakan said.

The Quebec Superior Court and the Quebec Court of Appeal, despite siding with the provincial government in its rulings on Bill 21, have criticized how the government has employed the notwithstanding clause and noted its interpretation is too broad.

Bakan suggested the court could consider whether additional guardrails are needed, and whether there should be additional limits beyond the five-year “sunset” provision, which could range from requiring a two-thirds legislative majority to approve using the notwithstanding clause or a public debate over whether it is justified.

The court may also simply uphold the Ford decision, delivering a victory to Quebec.

“The problem is how much of this is a political solution that the courts can’t really deal with, because they can’t go too much around the language (and) they can’t set guardrails that are not in the Constitution,” said Pearl Eliadis, a lawyer and associate professor of public policy and law at McGill University.

“So the question then becomes, how bad does it need to get before the courts will intervene?”

Bill 21 is part of a string of laws the Quebec government has pursued in recent years to increase state secularism rules that prioritize the province’s Christian heritage.

The province invoked the notwithstanding clause again last year for new legislation that would ban prayer and other religious practices in public institutions, most notably colleges and universities.

“Canada itself is a secular society, by the way,” Eliadis said. “So that principle has already been agreed to in the constitutional framework.

“I think what is different in Quebec is that the idea of secularism has been weaponized a little bit so that it is no longer a shield from religion, but it’s actually being weaponized against religious minorities. That piece is unique to Quebec right now, and in my view is deeply problematic.”

Bakan said one of the issues in this week’s Supreme Court case is whether Quebec’s use of the clause for Bill 21 violated Section 15 of the Charter.

That section says every Canadian “has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

A decision in the case, beyond potentially setting a new precedent for the use of the notwithstanding clause, would also set a precedent for whether or not provinces and territories can set limits on religious freedom and expression.

“If the court decides that state secularism does not violate a Charter right, then that’s going to apply across the whole country,” Bakan said.

He noted, however, that another province’s argument for a secularism law would be different from Quebec’s, which has its own unique culture and place within Canadian constitutionalism.

That uniqueness was acknowledged by both Supreme Court justices and lawyers in Monday’s hearing, which was focused on arguments from those challenging Bill 21.

“Don’t you agree that the reality in Quebec is very different from the history in the rest of the country, in terms of the relationship between religion and society?” Chief Justice Richard Wagner asked.

“I do, but I don’t think that has a bearing on the constitutional outcome of this case,” replied Molly Krishtalka, who represented a group of Quebec citizen plaintiffs.

“Quebec does have a unique history and a unique relationship with religion, but we have one federal constitution.”

Eliadis said the Supreme Court’s eventual ruling won’t necessarily threaten Quebec’s position as “a nation within Canada,” but will address whether any province or territory has the right to pursue its own vision of collective society that’s distinct from the rest of the country.

“Although there’s a lot of elastic, if you will, between the provinces and the federal government … how far can that elastic be pulled before we start to deform the nature of what Canada is?” she said. “I think that’s really the question that’s before the court now: how different can that vision be?”

“Canada was established as a country that created compromises among the English and the French, among Catholics and Protestants, among settlers and Indigenous peoples and so on,” she added. “So this idea that we are somehow only prioritizing individual rights, I think, is historically false and I think it takes us down the wrong road.”