Quebec’s secularism law gets its day in court

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When Quebec’s secularism law finally has its day at the Supreme Court next week, it will be a case for the ages. There will be dozens of interveners, six provinces and the federal government will be represented, and Ontario’s Attorney General will even make his argument personally. At issue are fundamental questions of individual liberties, religious freedom, gender equality, minority language rights – and whether pre-emptive use of the Charter’s notwithstanding clause bars the Court from wading into any of it.

For a preview of this potentially seismic legal reckoning, Alison is joined by the University of Alberta’s Eric Adams; the Université de Montréal’s Karine Millaire, who will be participating in the case on behalf of the International Commission of Jurists’ Canadian chapter; and Sahar Talebi of Lenczner Slaght in Toronto, who is representing the Canadian Council of Muslim Women.

Notes:

English Montreal School Board, et al. v. Attorney General of Quebec, et al.

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Hello everyone and welcome back to Verdicts & Voices. I'm your host, Alison Crawford, and this weekly legal affairs podcast is brought to you by the Canadian Bar Association.

Next week, the Supreme Court of Canada will hear one of the most consequential and highly anticipated Charter cases in many years. It's a challenge of the Quebec government's secularism law. In 2019, members of the National Assembly passed what's more colloquially known as Bill 21. Its purpose was to establish a secular – or as they say in French, laïque – society in the province.

Among other things, the bill prohibits people from wearing religious symbols and clothing while at work in the public service. So, you know, for teachers, police officers, prison guards and government lawyers, they're prohibited from wearing a turban, a kippah, a hijab, or any jewelry featuring symbols such as the Star of David or a crucifix.

Quebec’s Justice Minister, Simon Jolin-Barrette, has repeatedly said the law is constitutional. Even so, the government invoked the notwithstanding clause to protect the legislation from a successful Charter challenge. So, in addition to religious freedoms, the case raises a separate question relating to how provinces can use the notwithstanding clause.

Joining us now to provide context, and a preview of what's to come next week are three really great guests. Karine Millaire is a Université de Montréal constitutional law professor, but next week she will be appearing for one of the interveners, the Canadian chapter of the International Commission of Jurists. In Edmonton, where he writes an awful lot about the constitution, is renowned University of Alberta law professor Eric Adams. And in Toronto, we are so fortunate to have Sahar Talebi. She's with Lenczner Slaght law firm and is set to represent the Canadian Council of Muslim Women. Welcome to the podcast.

Sahar Talebi

Thank you for having us.

Eric Adams

Yeah, great to be here.

Alison

I'm going to start with you, Eric. Just to kind of set the scene here, could you help me understand the scope of this hearing? There seem to be so many hopes and dreams of what this case is going to achieve. But what are the specific questions before the court?

Eric Adams

Well, the scope of this hearing is a little hard to get your hands around. It's like a river overspilling its banks. I mean, if you just even look at the number of hearing days that the court has set aside, it's unprecedented. The number of interveners at something like 38, and a number of governments are going to be present. And again, rather remarkably, in one case, we've got a minister of justice making the arguments, in another we've got deputy ministers of justice making the arguments. All of that is novel, reasonably unprecedented.

And so, to ask the question, you know, what is this case really about, in one sense it's, of course, sparked by this particular piece of legislation by the Quebec legislature, but the case has become focused more or less around the nature of the use of the notwithstanding clause; the meaning of the notwithstanding clause in our constitutional arrangements; what actual legal effects trail in the wake of the use of the notwithstanding clause; whether or not there is any scope or possibility for some kind of judicial review, even though the notwithstanding clause has been invoked; whether or not the court might be willing to revisit the only other substantial judicial decision it has issued on the notwithstanding clause that was dated back to 1988. So, there are intervenors calling for the court to rethink the approach to the notwithstanding clause.

And standing behind all of that is a more basic question about the legislation and its impact on vulnerable peoples. And so, you tie all that together and you have a court that's going to be wrestling with a lot of very challenging and weighty constitutional issues.

Alison

Yeah, that's putting it lightly. Now, just to answer someone's question that might have arisen listening to you, of course, it's Doug Downey, the Attorney General of Ontario, who will be arguing the point of view for the Ontario government. Now, Karine, you're in Quebec. Could you describe, kind of, first of all, how big a deal is it in Quebec?

Karine Millaire

I think it's a very important case because, as you said, Bill 21 is about the prohibition of religious symbols, but two other bills have passed afterwards to reinforce this prohibition. Now we have also all the school staff interacting with students and including volunteers and even parent volunteers who are prohibited from wearing religious symbols.

Alison

And daycare workers.

Karine Millaire

Yeah, daycare workers. This bill has not been adopted yet, but it has been recently introduced. And we know that afterwards, Quebec has also used an outstanding clause pre-emptively to reinforce Bill 101 on the French language and to set aside the protection against discrimination.

It's like it has opened a Pandora's box. Section 33 has been used or invoked several times since then. We even have now this Bill 1 on Quebec's constitution, which aims actually to make the notwithstanding clause the norm instead of the exception. If I may read the provision, says that the Parliament of Quebec may use the notwithstanding clause in any act it enacts without any requirement to contextualize or justify the provision.

Alison

What is the International Commission of Jurists and why has it decided to intervene in this case?

Karine Millaire

We have decided to intervene in this case because it has really a national importance, because it violates international law provisions to deprive citizens, organizations to be able to challenge the constitutionality of laws. We will also argue… Because Eric said that actually the Supreme Court would have to decide if they want to revisit the only Supreme Court case about Section 33. But our argument is that actually the Supreme Court never said that the notwithstanding clause doesn't have any substantive limits. Because actually the question has never been asked explicitly and the context has changed.

And actually to allow the notwithstanding clause to be used preventively and to become the norm rather than the exception – because I think the court and the judges cannot ignore the context now – actually, it would set aside the universal human rights protection regime that has been implemented since after the Second World War. So, that would be one of the arguments we're going to put forward.

Alison

Sahar, what can you tell us about how Bill 21 has affected Muslim women in Quebec?

Sahar Talebi

One of the things that we're actually aiming to highlight to the court is exactly the answer to your question, the ways in which this directly impacts women, Muslim women, Muslim women in Quebec who are minorities and who are living the everyday experiences. And the ways in which a decision like this can further legitimize what's actually happening to those women in that province.

And obviously the impact of that, that is going to be way broader than what's actually happening to the Muslim women in that province.

Alison

So, can you give me some examples?

Sahar Talebi

Yeah. And so, some of the ways that this has actually impacted their daily lives is through their ability to actually show up to work, have the ability and the freedom to choose where they want to work, have the ability and freedom to actually choose the way that they want to dress. So, we are now in a situation where women's choices in that regard are being policed, are being judged, are being stigmatized. That has a real impact on the way that they're able to function and participate in the society.

And that's not, you know, you think about their roles, their jobs, those types of things. But it's way broader than that because it's really about their engagement with their environment and the way in which they see themselves and the rest of the community, and the society sees them. And so those are, I think, some of the big impacts, and then the way in which I think we can frame it is that it's leading to the normalization of the oppression of Muslim women and, sort of, the acceptance of this culture of exclusion for everyone else towards these vulnerable minority groups.

Alison

Yeah. Thank you for that. Eric, you know, virtually every province and territory has something to say about this. For instance, Manitoba premier Wab Kanu, in an interview with CBC TV host David Cochrane, talked about their intervention and what they want to achieve:

If our intervention is successful, a court would not be able to strike down a law that’s using the notwithstanding clause, but they could still say that, if it weren’t for Section 33, this would be unconstitutional. The thinking behind that is, now with the experts on the bench ruling about the constitutionality, otherwise, of these provisions, you the voter now have that piece of information the next time you go to vote.

Can you give us an idea of what the different factions are between the provinces and even the federal government?

Eric Adams

Well, maybe it's not surprising to hear that the provinces that have recently invoked the notwithstanding clause, Alberta and Saskatchewan and Ontario, each of those provinces is intervening to say that it's crucial that the court maintains its very hands-off approach to the use of the notwithstanding clause. In effect, when the notwithstanding clause protects or shields a piece of legislation, that the court has nothing to do and nothing to say.

Why? Because, effectively, the rights that would have existed no longer can apply to that piece of legislation. If rights can no longer apply, then there is no scope for judges to say anything or to make a comment or to even question the use of the notwithstanding clause in any respect. That's the position being advanced by those provinces.

However, that is not a universal view amongst Canadian governments. The federal government, BC and Manitoba, as you've heard, all have a different view. They say that yes, the notwithstanding clause is part of our Charter, it's part of our constitution, you can't wish it away. But it does have limits – both internal limits and some limits, when you think about how it's supposed to interact with our other constitutional features. And one of those limits is the idea that it does not remove the capacity of judges to exercise their role in a constitutional democracy to assess whether or not legislation has within it a conflict with one of the Charter rights and freedoms.

Now, what the court cannot do is strike down that legislation. It's prevented from giving that remedy, but it is not prevented from making a declaration, say, or describing the ways in which a law may have a particular unreasonable interference with freedom of religion.

Alison

Yeah. From a practical kind of—if you just look from a citizen's point of view, it seems to me very inefficient to just say, yeah, we're introducing this law, the courts can decide if it's unconstitutional, and if they do decide it, they can choose not to care about it. Like, I don't know if the courts want to operate in that fashion.

Eric Adams

Well, one of the arguments is that, yes, that's not a proper judicial role because it's answering a moot question. But a number of interveners are pushing against that idea by saying, no, it's absolutely crucial. Because, number one, it's the only place where the impacted rights holders may get to have their say. They may be otherwise completely silenced in the political process. Number two, the mechanism of the notwithstanding clause is that every five years it has to be renewed. It is not a perpetual get-out-of-jail-free card on the Charter.

Sahar Talebi

We often don't think about this, I think, in our everyday lives, but for vulnerable minority communities, the safeguards of these types of judicial pronouncements are not abstract, right? They're often the only mechanism capable of recognizing rights infringements and really documenting the reasons and the evidence that ends up guiding the use of these types of things, like Section 33 and so on. Because they do promote a certain degree of accountability and guidance, honestly, also for officials, educators, and employers, right? In their application of the law. And all of that in addition to what we were discussing about sort of the sunset clause, which also is something that is a part of the Section 33 legislation. So, I wanted to just note that, because it's often hard to apply some of these abstract concepts to everyday life, but they actually end up having some real impact in that regard.

Karine Millaire

Following up on what Sahar just said, I think that the impact, this disproportionate impact on minorities should lead us to conclude that the protection-of-minorities constitutional principles should play a role to delimit the scope of Section 33.

Alison

So how would you explain that point in plain language to the average person?

Karine Millaire

Well, I would say that our constitution is in part written and in part unwritten. And we have very basic principles such as the rule of law, the rule of law that excludes the arbitrary on protection of minorities. Democracy, federalism, those principles are really the basic tenets of our constitution. They are unwritten, but they really do influence the way we must interpret the constitution.

Alison

Thank you. Eric, as you said, there's a huge number of interveners. We have attorneys general who going to be making their cases, and deputy ones. What does this tell you about the huge interest across Canada?

Eric Adams

Well, it's become once again a very hot-button political issue at the provincial, but also the federal level. So, people will remember that, in the last federal election, certainly you had the Conservatives campaigning on the idea that if they form government federally, they would be the first to invoke the notwithstanding clause by Parliament. And, you know, there's a fair bit of criticism in the air these days around judges and criminal law rulings and should the notwithstanding clause be used in those respects.

And then, of course, at the provincial level, Quebec is not alone in, at the provincial level, of having governments say, well, we’re not sure that we want to keep engaging in this question of whether or not we can have the legislation that we want. You know, we disagree fundamentally with the idea that, you know, one judge can strike down the democratic will of the legislative assembly of whatever province.

And so, these are very deep political questions that Canadians are having to confront. And it goes to the very heart of what it means to have a constitution and to have the role of courts within that constitution provide a check on democratic majorities, on legislatures. That's one of the purposes of a constitutional instrument.

But what's fascinating and also confounding about Canada's particular constitutional instrument is that it has this feature of it, which is that it would seem to, on one hand, guarantee rights and freedoms, to give this very powerful role to courts. And on the other hand, to have a mechanism for legislatures or for parliament to work around those judicial powers. And this will be the first time in forty years, really, that the court has had to tell us what the theory is of how all of that fits together. And they haven't been asked that question very often. They're gonna be asked it next week.

Alison

Yeah. Now, we have Justice Mahmud Jamal, who is not going to be participating in this. Can you explain why, Eric?

Eric Adams

Well, there was an allegation from, I think, the Quebec government that he was too close to the political issue when it first arose. Because Justice Jamal was, right before he was appointed to the Ontario courts, a member of the Canadian Civil Liberties Association. I think he was on their board. He had a kind of a leadership position. And when Bill 21 was released, the Canadian Civil Liberties Association took a position on the unconstitutionality of that legislation.

Now, I don't think Justice Jamal had any role in that particular position that they articulated. But nonetheless, although he defended himself that he was not biased and that he should have been able to sit on the case, in order to avoid further controversy, he took the view that he should recuse himself, and that is what has occurred.

Alison

Yeah, I guess we'll find out whether the court sits eight or seven when this all goes down next week. I'd like to thank all of you for making the time to get together for this conversation. I'm really confident that our listeners have learned a lot and appreciate your information and your points of view. Thank you for coming on Verdicts & Voices.

Eric Adams

Thanks so much.

Karine Millaire

Thank you.

Sahar Talebi

Thank you.

Alison

I've been talking to University of Alberta professor and constitutional law guru Eric Adams. Karine Millaire is also a constitutional law expert at l'Université de Montréal, and next week she is counsel for the International Commission of Jurists, the Canadian chapter of that. And Sahar Talebi is representing the Canadian Council of Muslim Women. She has a very broad litigation practice at Lenczner Slaght in Toronto.

And if you're keen to tune in and watch some of next week's hearing, you can access the Supreme Court of Canada's live video feed or watch it live on CPAC. That's the Canadian Parliamentary Access Channel. Personally, I got to say I love the CPAC treatment because they have a little information super at the bottom who will tell you who is speaking. Because with so many interveners having five minutes each, it's going to be difficult to keep track at some parts.

So, those are my recommendations for you. I really hope you liked today's episode of Verdicts & Voices. We'll be back again next week. This podcast is brought to you by the Canadian Bar Association, and I'm your host, Alison Crawford.