Thursday was the fourth and final day of a historic four-day hearing on a notwithstanding clause case
Allotted five minutes each to make their case to a Supreme Court of Canada panel on Thursday, many of the intervenors in a historic appeal of Quebec’s use of the notwithstanding clause focused on the same issue: whether the high court can declare that Quebec’s Bill 21 violates Charter rights, even though the province’s invocation of the notwithstanding clause limits courts’ ability to review the controversial secularism law.
Also known as s. 33 of the Canadian Charter of Rights and Freedoms, the notwithstanding clause can be invoked by Parliament or provincial legislatures to enact laws that technically violate ss. 2 or 7-15 of the Charter. This Charter override is temporary and must be renewed by the legislature that invoked it every five years.
Counsel for 27 intervenors presented arguments to the court on Thursday.
“Declarations of this kind do have a purpose, even after 33 has been invoked. They not only inform the public, they help legislatures. They help the attorney general,” argued Allan Rock, a lawyer representing the Samara Centre for Democracy.
“When the five-year time comes, and she or he has to decide whether to tailor the legislation, whether to renew the five-year exemption, or whether to abandon it, the views of the court with respect to validity and conformity will be very influential and helpful.”
Describing Muslim women in Quebec as “the face of Bill 21’s exclusion,” Sahar Talebi, who represented the Canadian Council of Muslim Women, argued that a judicial declaration that the law violates the Charter “is not an academic exercise” but “the only constitutional mechanism capable of recognizing the rights infringement.”
“A declaration serves multiple practical functions and utility across every dimension of Muslim women’s lives, which have been impacted by Bill 21,” Talebi said. “It provides a crucial form of validation and accountability. It acknowledges and records the harm that’s been experienced and continues to be experienced. It gives their lived experiences legitimacy… It informs and frames future policies affecting Muslim women and other minority groups.”
Talebi further argued that vulnerable minority groups like Muslim women “often have limited impact through the ballot box. Courts provide a vital institutional venue for these groups to ensure that they are not rendered invisible by the Constitution.”
However, George Avraam, arguing on behalf of the Canadian Constitution Foundation, took a different stance.
Whether or not the high court agrees with Bill 21, it does not change the fact that the notwithstanding clause is part of “the constitutional design,” Avraam said, adding “the remedy is not with the judiciary.” He argued that legislatures do not have to wait for the courts to weigh in before they use s. 33, and that it would also be inappropriate for courts to issue declarations about Charter infringements once s. 33 has been invoked.
“There are different ways to hold legislatures to account, and we’ve seen them: opposition parties, grassroots, academic writings, editorials,” the lawyer said. “Social media, protests – these are ways to hold politicians and legislatures to account.
“Nobody, in my submission, needed this court to weigh in on whether the provisions of Bill 21 violate section 2 [of the Charter, which guarantees certain freedoms],” Avraam adds. “We see it. The public has seen it. And that is the proper mechanism for accountability.”
The question of whether courts can make declarations of Charter infringements after the invocation of s. 33 has been a central issue this week, as the Supreme Court heard arguments over four days in English Montreal School Board, et al. v. Attorney General of Quebec, et al. The case consolidates multiple challenges to Bill 21, a Quebec law passed in 2019 that bars certain public-sector workers from wearing religious symbols, such as crucifixes or hijabs, on the job.
The parties challenging Quebec’s use of s. 33 to enact the law said courts have the power to declare that Bill 21 breached the Charter – even if they ultimately found that Quebec’s use of the notwithstanding clause was valid. While such a declaration would have no true legal impact, it could be informative to both the Quebec legislature and the public when the Charter overrides expires and is up for renewal.
On Tuesday, counsel for the Quebec government and Mouvement laïque québécois, who wanted the high court to uphold Quebec’s use of s. 33, had argued that the court’s role does not include issuing such a declaration and that such declarations would lead to the “Americanization” of Canada’s judicial system.
Intervenors on Thursday also broached other issues. Representing the Community Legal Assistance Society, Jonathan Blair referenced a question that Chief Justice Richard Wagner had asked a lawyer for the Quebec government about a hypothetical scenario in which a “tyrant” government wants to enact laws that violate fundamental rights.
Wagner immediately clarified that he didn’t believe the case hinged on an “extremist or catastrophic scenario.”
Blair responded, “We would say that this isn’t just… extremist or catastrophic. It is fundamentally the history of our constitution. And we would say many of the atrocities of the 20th century are the result of discriminatory legislation.”
Justice Malcolm Rowe interrupted. “You have less confidence in the good sense and goodwill of Canadians than I do,” Rowe said. “We’re not teetering on the edge of the precipice of fascism. That’s not the reality.”
Blair said that was a political question. “But what I could say, and I think has been established by this court, is that our constitution as it exists now – including the human rights legislation across this country and the Charter itself – are largely the product of the rejection of the discriminatory atrocities that happened in our past, particularly, obviously, coming out of World War II.”
He added, “None of us can know for sure what the future holds. But we must not repeat the historical mistakes we have made.”
The appellants' closing arguments
Counsel for the appellants challenging Quebec’s use of the notwithstanding clause made their closing arguments on Thursday.
Perri Ravon, who represented the English Montreal School Board and other parties, referred to specific arguments by the respondents on Tuesday. “Counsel for Pour les droits des femmes [du Québec] said that there is no evidence that women have been more impacted by Bill 21. That is categorically false,” Ravon said. “There is a common admissions agreement between the English Montreal School Board and the Attorney General of Quebec.”
Ravon noted that the agreement covers every category of employment covered by Bill 21. “Every single person, based on the common admissions agreement, who was denied employment or lost their job when Bill 21 became law, is a woman who wears the hijab,” she said. “At the largest organization covered by Bill 21, every single question put to human resources by staff flagging potential contraventions of Bill 21 concerned women who wear the hijab.”
Ravon then addressed Mouvement laïque québécois’ argument that teachers harm families when they wear religious symbols.
“That, again, is categorically false. The trial judge found that there was no evidence to support this claim,” Ravon said. “On the contrary, he accepted the expert evidence in this case showing that visual markers of diversity among teachers, including the wearing of religious symbols, promote better integration and success of students from ethnic and religious minorities, and increase all children’s comfort and ease with difference.”
Olga Redko, who represents Ichrak Nourel Hak, a Muslim woman who was studying to be a teacher in Montreal when Bill 21 was enacted, told the high court that a key question is whether “religious freedom is entirely coextensive with 2(a) [of the Charter, which guarantees freedom of religion].”
“Ask yourselves, could a province establish a state religion simply by overriding 2(a) using s. 33? Or could a province require that only Catholics may participate in the public service?” Redko asked. “If our constitutional architecture places no limits on s. 33, then we must be comfortable with the idea that the state can do that and far more.”
She continued, “Is there any part of our civil liberties that adhere in our democratic institutions? Or can they all just be swept away through a cursory recourse to s. 33 at the whim of a simple majority?
“That is what we are asking the court to decide.”
