Supreme Court justice says decision on challenge of Quebec’s secularism law won’t be based on ‘extreme’ scenarios

Wagner said he was merely seeking a response to a lawyer who warned of dire consequences if a “mini-Trump” was elected in Canada, and on Thursday the chief justice reminded lawyers not to resort to “extreme” examples of what could happen if the court decides to uphold Quebec’s secularism law, Bill 21, and its pre-emptive use of the override provision in the Canadian Charter.

In closing off the oral arguments, Wagner again stressed the court was acutely aware of the “scope of the questions raised for judicial structures and society,” and would take time to render a ruling, expected months from now.

Those who challenged the law say Quebec’s law violates religious freedoms but also other important rights — beyond those overridden by the section 33 shield that Quebec invoked. They pointed to section 23 which protects minority language education rights, and section 28 which protects gender equality, and warned Quebec cannot use the override to escape its obligations to respect those.

Dominic Caron, lawyer for New Brunswick’s Acadian Society, warned secularism laws could be used someday to threaten the expression of minority cultures like that of the Acadians.

The yellow star on the red, white and blue Acadian flag represents the Virgin Mary, patron saint of Acadians, celebrated on Ascension Day, and Caron suggested a secularism law could threaten Acadian artwork, folk songs, or the wearing of clothes with the Acadian flag. Even the the famously noisy Tintamarre parades celebrating the survival and presence of Acadian culture he suggested could be at risk “if we follow what the attorney general of Quebec says” about the need to ensure neutrality for public figures.

Wagner interjected to say the Supreme Court has already ruled section 23 protects both language and culture, and rejected “extreme examples.”

“I don’t think we’re going to be looking at extreme scenarios when we decide this case.” 

Over four days of hearings that spanned the legal, arcane, esoteric and political reasons why the Supreme Court of Canada should or should not uphold Quebec’s secularism law, half a dozen groups representing religious minorities, Muslim women, and English language school boards, along with dozens of intervenors, urged the top court to limit the use of the override power.

They demanded the court bar lawmakers from using it pre-emptively to avoid court scrutiny, saying it should only be used in the event a court declares rights have been violated. Courts should limit how many times it can be invoked, and issue declarations about rights violations even if the override clause applies, they said, pleading that judges are “safeguards of constitutional rights” and the last bulwark for vulnerable groups.

Lawyer Allan Rock, a former Liberal politician, federal attorney general and justice minister, on behalf of the Samara Centre for Democracy, said that since 2000 over 80 per cent of provinces’ use of the override clause has targeted “minorities or vulnerable groups” who don’t have “access to the public square” to defend their rights.

“For many, often minority, groups a courtroom is the only forum where evidence matters, where fairness governs and where every voice is heard.”

Rock cited real-world cases and evidence that Bill 21 has meant an Orthodox Jewish lawyer at Norton Rose Fulbright global law firm  was “unable to take public mandates,” aspiring teachers and prosecutors were “effectively barred from taking public roles because of their religious observance.”

A lawyer for Montreal’s English language school boards told the court that all of the cases where provincial employees have suffered job repercussions since Bill 21’s passage in 2019 were racialized Muslim women who wear a hijab or head scarf.

Rock, the former politician, argued a judicial declaration about a law’s impact is neither moot, nor political interference. Instead, he said it would be “very influential and helpful” to lawmakers when it comes time to assess, after the five-year time limit for an override has expired, whether their legislatures should tailor the legislation, renew it with another five-year override, or abandon it altogether.

And Rock pushed back against Ontario Attorney General Doug Downey who argued it’s not the role of the courts to give consultative or advisory opinions, saying that’s exactly what court reference cases — like the historic reference on Quebec secession — are. 

Lawyer Sujit Choudhry, for the South Asian Legal Clinic of Ontario, said the Quebec legislature was “wilfully blind” to disproportionate and foreseeable impact on racialized Muslim women. The law violates Canada’s international human and civil rights obligations, and Choudhry said an override power should never shield such laws.

Amidst all the legal pleadings on the final day came a novel argument from a group representing ultra Orthodox Hasidic Jews.

Lawyer Marc-André Fabien on behalf of the Hamshuchas Hadoirois International Association, which is active in Canada and the U.S., said there can be no secular state in Canada because Canada is a constitutional monarchy that is a parliamentary democracy which derives its authorities from a British sovereign — the King — who gets his power from “divine authority.”

So, he said, “it is unconstitutional for the Canadian parliament and all of its legislatures in the provinces to declare that the state is secular, or lay, without a constitutional amendment.”

The concept of state “neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief,” he argued. “What the (Quebec) legislature is doing here by decreeing laicity is to make non-belief the rule.”

Quebec and several conservative-led provinces say the constitutional override was a critical compromise that preserves parliamentary sovereignty and allowed nine of 10 provinces to agree to the patriation of the 1982 Canadian Constitution with its then-new Charter of Rights and Freedoms and told the court it does not have the last word.

The Canadian Constitution Foundation agreed, saying courts are not the only guardians of fundamental rights in a democracy, and that opposition parties, grassroots, academic critics, newspaper editorials and columnists, social media and public protests are all ways to “hold politicians and legislatures to account.”

“Nobody needed this court to weigh in on whether the provisions of Bill 21 violate” Charter freedoms of expression, religion, opinion, assembly and association, said lawyer George Avraam, for the foundation. “We see it, the public has seen it, and that is the proper mechanism for accountability. It’s not just the domain of the courts to hold this legislation or the legislature to account.”