Appellants challenged Quebec’s use of the notwithstanding clause on day one of a four-day hearing
On the first day of a blockbuster hearing on Quebec’s use of the notwithstanding clause to preempt challenges to a controversial secularism law, Supreme Court of Canada Justice Malcolm Rowe asked a lawyer for one of the parties disputing Quebec’s move: isn’t the province using the legal mechanism, which is embedded in the Canadian Charter of Rights and Freedoms, precisely as intended?
Perhaps provincial governments are more frequently using the notwithstanding clause because they disagree with court decisions, Rowe said at the Monday morning hearing. After all, he added, that’s the objective of the clause – its raison d’être.
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The notwithstanding clause, or s. 33 of the Charter, gives legislatures the authority to enact laws even if they breach certain Charter rights. Those laws must be renewed every five years to remain in effect.
But Frédéric Bérard, who argued before the high court on behalf of Fédération autonome de l’enseignement, a group of Quebec teachers’ unions, told Rowe he disagreed with his assessment.
Bérard noted that when then-Justice Minister Jean Chrétien negotiated s. 33’s inclusion in the Charter in 1981 – it came into force with the Charter the following year – he envisioned it as a safety valve if legislatures ever disagreed with court decisions. Now, reliance on the clause has increased.
Chief Justice Richard Wagner pressed Bérard on whether increased use of the clause was actually occurring, noting that the federal government has never invoked s. 33. Doesn’t history show that Canada’s legislatures understand the clause must only be used in exceptional circumstances?
Bérard responded that he would have agreed back in the 1980s, but not today, noting that the clause has been invoked nine times by provincial governments in the past 24 months alone. Historically, it has been an exceptional measure, used only a handful of times in each of the decades since the Charter came into force.
Bérard was the sixth of eight lawyers – who collectively represented six groups of appellants – to present arguments to the high court on Monday. The lawyer’s exchange with Rowe and Wagner, which took place in French, gave one of the hearing’s most practical answers as to why the appellants believe Quebec’s use of the notwithstanding clause is such a high-stakes matter: it did not occur in a vacuum. In recent years, the clause has been invoked by other provinces – including Ontario, Alberta, and Saskatchewan – to prevent education workers from striking, restrict gender-affirming health care for youth, and require schools to obtain parents' consent before using students’ preferred pronouns.
For the appellants in the case, English Montreal School Board, et al. v. Attorney General of Quebec, et al., Quebec’s use of s. 33 to shield its secularism law is emblematic of a trend that has emboldened provinces to use a once-exceptional mechanism to override key Charter protections like those offering protections from discrimination or unreasonable search or seizure. For the respondents, including the Quebec government, the sovereignty of provincial legislatures is at stake.
Quebec’s secularism law, known as Bill 21, was enacted in 2019, barring certain public-sector workers from wearing religious symbols while on the job. Multiple groups filed separate challenges to the law, but a trial court and the Quebec Court of Appeal largely upheld its validity in 2021 and 2024, prompting the appellants to take the case to the nation’s highest court.
Seven of the Supreme Court’s nine justices will hear arguments over the course of four days this week, including a record 51 intervenors. Justice Mahmud Jamal recused himself from the case because he previously served on the board of directors for one of the appellants. Justice Mary Moreau did not participate.
The appellants, including the English Montreal School Board, the World Sikh Organization of Canada, the Fédération autonome de l’enseignement, the Lord Reading Law Society, and several individuals, challenged Quebec’s invocation of s. 33 on Monday using a range of arguments. Below are some of the highlights from the first day of arguments.
‘The target… is religious practice itself’
According to counsel for Ichrak Nourel Hak, a Muslim woman who was studying to be a teacher in Montreal when Quebec adopted Bill 21, ss. 6 and 8 of the law – which ban certain public sector employees from wearing “religious symbols” and working without face coverings – are meant to exclude certain religious people from participating in the public sector.
“Canada’s constitutional architecture ensures that employment in the public service cannot be limited only to the subset of individuals who engage in the religious practices that the government of the day endorses,” Hak’s lawyers argued in a factum submitted to the high court. “By restricting access [to] such employment to individuals who wear visible religious symbols, ss. 6 and 8 of the act contravene the constitutional architecture.”
The lawyers noted that the notwithstanding clause does not have an unlimited reach, only allowing legislatures to declare that all or part of a law operates despite ss. 2 or 7-15 of the Charter. By invoking the clause, a legislature cannot “guarantee automatic coherence with the constitutional architecture.”
On Monday, one of those lawyers, Olga Redko, told the high court that Bill 21 does not aim to impact how state institutions operate; it only aims to discourage certain religious individuals from working at those institutions. Redko drew a comparison between Bill 21 and Nova Scotia regulations at the heart of a 1993 high court decision, R. v. Morgentaler, which imposed restrictions on abortion services.
At the time, the high court “focused on the fact that there was no evidence the legislator was trying to improve the quality of medical services by prohibiting clinical abortions,” Redko argued. “The target of ss. 6 and 8 is religious practice itself. And what the evidence shows of the practical effects of these provisions is that religious individuals have felt the state pass value judgment about their role in Quebec society.
“The message that they’ve received is that they’re not worthy of participating in provincial institutions because their expressions of faith are contrary to Quebec’s values.”
Later, David Grossman, who also represented Hak, opened his arguments by referencing the 1774 Quebec Act. The legislation “broke down barriers and allowed Catholics in Quebec to participate in the public sector,” Grossman said.
“Religious inclusion in our public institutions then, as now, was not a historical accident. It is part of our constitutional structure,” he said. “It is a deliberate choice about the participatory nature of our democracy and the role that each individual can play in our public institutions. It is part of what makes Canada, Canada.”
Later, Justice Suzanne Côté asked Grossman how he reconciled his position with the Supreme Court’s 2015 decision in Mouvement laïque québécois v. Saguenay. “It is a decision where the court recognized this laic state in Quebec, and the former mayor of Saguenay, a Catholic, was prevented from saying the prayer because there was a citizen in the municipal council room who did not profess any religion,” Côté said.
Grossman responded that “exclusion of activities is very different from exclusion of individuals.
“The structure that I’m pointing to in our public institutions is that individuals will not be excluded from participation in our public institutions because of their core identities, who they are, the religions they practice,” he added. “That doesn’t mean the government can’t regulate what they do in those positions.”
‘Separation of church and state’
Representing a Catholic teacher named Andréa Lauzon, lawyer Molly Krishtalka told the high court that the notwithstanding clause empowers legislatures to strike a balance between a law’s objective and its potential infringement on Charter rights. However, Bill 21’s primary purpose is to deny Charter rights, she argued.
Rowe intervened. “Why don’t you just say it out loud? You want us to review whether [Quebec’s use of s. 33] is somehow justified by reference to some criteria you want us to adopt, and that we will say whether 33 has been properly utilized or not, and thus we will have the final say even when 33 is utilized,” he said.
Krishtalka rejected this accusation. “That is not the argument that we’re submitting. We do not want the court to examine whether or not the legislature has properly used 33, whether it should have used 33,” she said. “Those are political considerations, and that ultimately falls to the jeopardy of the polls.”
She continued, “What we submit is that a law that seeks to deny a Charter right – that is the purpose of that law. There’s no other right being considered. There’s no balancing exercise that can possibly be conducted.” She later added that there are scenarios where a law can “substantially infringe a Charter-guaranteed right, as long as that’s not the purpose of the law.”
Later, Rowe said, “Whether it’s good public policy or not, as I said before, is not my concern. But is not the purpose of [Bill 21], clearly to put in place a separation of church and state, which is referred to as la laïcité, which, broadly speaking, follows the model which is in place in the French Republic?
“It is not a law whose purpose is to single out minority groups for discriminatory treatment,” Rowe added. “You may say to us that that is a consequence. But I find it very difficult to accept that the purpose of the law is to achieve that, rather than… to put in place a certain institutional relationship between church and state… on the model of the French Republic.”
Krishtalka responded that a Quebec trial court had found that the purpose of Bill 21 was to bar the practice of individual religious beliefs.
“It's possible that he was wrong,” she said. “It’s ultimately for this court to conclude.”
