Quebec asked the SCC to uphold its use of the notwithstanding clause on day two of a historic hearing
The seven Supreme Court of Canada justices hearing oral arguments in a historic notwithstanding clause case asked notably fewer questions on the second day of the hearing, which was reserved for arguments by Crown attorneys and other counsel who want the high court to uphold Quebec’s right to invoke the clause.
In 2019, the provincial government had used the clause – otherwise known as s. 33 of the Canadian Charter of Rights and Freedoms – to preempt challenges to a controversial secularism law. That law, Bill 21, bars certain public-sector workers, such as teachers and judges, from wearing religious symbols on the job. The law elicited numerous court challenges, which were consolidated into the case currently before the high court, English Montreal School Board, et al. v. Attorney General of Quebec, et al.
READ MORE: Focus on litigation
On Tuesday, Crown counsel answered a wide range of questions from the high court justices about their arguments, which touched on the requirements legislatures must meet to invoke s. 33, the power of judges to issue judicial declarations in the context of a dispute involving the clause, and more.
But the justices had far fewer questions for counsel representing the remaining parties, including former president of the National Assembly of Quebec, François Paradis, and two organizations – the Mouvement laïque québécois and Pour les droits des femmes du Québec. The organizations’ arguments respectively focused on how the state should not force parents to expose their children to religious symbols worn by teachers, and how religious garments worn by some Muslim women, like burkas and hijabs, perpetuate the notion that women are inferior to men.
Counsel challenging Quebec’s use of the notwithstanding clause to shield Bill 21 presented their arguments to the high court on Monday. On Wednesday and Thursday, the court will hear arguments from a record-breaking 51 intervenors.
Justice Mahmud Jamal recused himself from the case because he served on the board of directors for one of the appellants before joining the SCC. To ensure an odd number of justices on the case, Justice Mary Moreau did not participate.
Tuesday’s proceedings were held entirely in French.
Can courts make declarations about Charter violations in s. 33 disputes?
One of the key issues before the Supreme Court concerns remedies. When the Quebec Court of Appeal released its ruling in the case in 2024, it noted that the parties challenging Bill 21 had asked the court to make a declaration as to whether the law violated the Charter.
Embedded into the Charter as a tool for the federal and provincial legislatures to use in exceptional circumstances, the notwithstanding clause allows legislatures to enact laws even if they breach ss. 2 or 7-15 of the Charter. These provisions guarantee certain protections – including against discrimination and unreasonable search or seizure – for individuals. However, a legislature’s use of this Charter override expires every five years and must be renewed.
The parties challenging Bill 21 argued that even if the Quebec Court of Appeal found that the province was allowed to use the notwithstanding clause to shield the law, the appellate court was still empowered to make a declaration finding that Bill 21 infringed Charter rights. A Quebec trial judge had previously refused to make such a declaration, though he observed that, in his view, Bill 21 is in some ways contrary to the principle of equality and restricts certain freedoms related to religion and expression. The appellate court also declined to issue such a declaration, noting that the Supreme Court has never ruled on whether courts can make such declarations in the context of a s. 33 dispute.
However, such a declaration is not without precedent. Last year, the Saskatchewan Court of Appeal said such declarations were permissible. The appellate court said such a judicial declaration could be useful to both the legislature that invoked s. 33 and its electorate, particularly when the five-year override period expires, and the legislature must consider whether to renew its use of s. 33.
On Tuesday, Justice Nicholas Kasirer referenced the Quebec Court of Appeal’s 2024 decision, asking counsel for Quebec, Isabelle Brunet, about the independence of the courts and the declaratory power of judges. Is such a power incompatible with the notwithstanding clause, if the high court respects the fact that its use in the enactment of Bill 21 suspends certain Charter rights for a period of five years?
Brunet responded that such an approach would lead the courts into the political sphere, which is not their role. The courts’ role is not to decide cases in accordance with what the judiciary, rather than the law, approves of, she said, adding that the courts’ role also excludes second guessing legal changes made by legislatures.
Kasirer answered that he was not talking about trying to avoid respecting the Constitution. In theory, the high court could do what the Quebec trial judge did in this case – make an observation about Bill 21 rather than a formal declaration.
Brunet said in that case, the high court would harm the “compromise” represented by s. 33. Earlier in the hearing, she had referred to the federal government’s decision to incorporate the notwithstanding clause into the Charter as one of the most significant compromises in Canada’s history.
Later in the hearing, Chief Justice Richard Wagner said that in the future, the country could find itself in a situation in which elected officials invoke the notwithstanding clause to eliminate fundamental rights. How would Brunet respond to that?
The Crown attorney said s. 33 is part of the Constitution and deserves to be respected. She also argued that the guardians of the Constitution are not only the courts, but also elected officials and the electorate, adding that we can’t presume that elected officials will act to the detriment of citizens.
Later, Guillaume Rousseau, one of the lawyers representing Mouvement laïque québécois, told the high court that allowing the court to make a declaration in a s. 33 dispute would lead to the “Americanization” of the Canadian court system. One of the reasons Canada’s system is superior to the US's is s. 33, which prevents the politicization of the legal system, he argued.
The rights of parents and women
Luc Alarie, who also represented Mouvement laïque québécois, a nonprofit organization that advocates for the secularization of public institutions, argued that Quebec’s use of s. 33 must be upheld for another reason: to protect the rights of parents with children in secular schools.
According to Alarie, the state violates these parents’ rights when it exposes their children to religious symbols that don’t align with their own religious convictions. These include religious symbols worn by teachers.
The lawyer noted that before the trial court, parents testified about the tension they experienced when their children saw teachers wearing religious garments. In one example, a mother said she experienced stress when her child asked her why she didn’t wear a head covering when her teacher did. In another example, a teacher who had been required to wear a hijab in Algeria moved to Quebec, where she chose to no longer wear a hijab and enrolled her children in a secular school.
Because her children saw other teachers wearing hijabs, her daughter told her she felt pressured to wear one too.
Alarie argued that such teachers chose to advance their personal interests rather than the interests of the children they taught. He noted that all of the parents who testified at trial said they had no issues with teachers wearing religious symbols outside of work hours.
Meanwhile, Christiane Pelchat, who represented feminist organization Pour les droits des femmes du Québec, cited academics who argued that while multiculturalism was well and good, it could also harm women’s rights.
She argued that patriarchal relationships cause discrimination against women, and that monotheistic religions are often found in patriarchal societies where infanticide and polyamorous relationships are common.
Justice Suzanne Côté asked Pelchat to clarify. When Pelchat says that patriarchal religions cause discrimination and differentiation, is she arguing that it’s not Bill 21 that perpetuates differentiation but rather patriarchal religions?
Pelchat told Côté to consider who was requiring women to wear discriminatory signs. She cited an expert witness who had testified at trial that head coverings are symbols of women’s inferiority to men globally.
She argued that women who wear head coverings are lowering themselves with respect to men in many parts of the world, contrasting those parts with "enlightened societies.” She said that too much importance is placed on freedom of religion and religious pluralism without consideration of their impact on women’s equality rights.
The lawyer added that in the history of Quebec, Catholicism was one of several religions that insisted that women remain in the home, bear children, and raise large families.
