Main Courtroom at the Supreme Court of Canada on November 28, 2022.Sean Kilpatrick / The Canadian Press
The Supreme Court of Canada will hear a landmark case over Quebec’s controversial Bill 21, a law that uses the Charter of Rights and Freedoms to override fundamental rights such as freedom of religion.
The Supreme Court announced its decision on Thursday morning. A hearing has not yet been scheduled but could take place this fall, after a possible federal election this spring. On average, there is a gap of eight months between the Supreme Court’s acceptance of a case and the hearing itself.
The issue of Bill 21 will be one of the biggest issues the Supreme Court has grappled with in years. In the coming months, a large array of legal arguments, pro and con, will hit the court. The federal government plans to intervene in the matter for the first time, after avoiding a confrontation with Quebec. There’s a possibility of foul play: Last year, Quebec Justice Minister Simon Julien Barrett said Ottawa should “mind its own business.”
The Quebec government has won two previous court victories, most recently at the province’s Court of Appeal last February. Last April, six groups asked the Supreme Court to hear the case. The Supreme Court took an unusually long time to consider whether to take up this hotly contested political issue.
Quebec’s Bill 21, which has been in force since 2019, aims to promote secularism in the province. It prohibits public service workers, such as teachers and police, from wearing religious symbols at work. The law destroyed the lives of many Quebecers.
Ichrak Nourel Hak, who is Muslim and wears a hijab, was forced out of her job as a teacher in 2021. She has been central to the case in lower courts and is part of a group, including the National Council of Canadian Muslims and the Canadian Civil Liberties Association, that appealed to the Supreme Court.
“This is an important moment. I feel a mixture of hope and trepidation,” Ms Nooral Haque said after the Supreme Court accepted the case on Thursday morning. “This is an opportunity to right an injustice.”
When Quebec’s Court of Appeal upheld Bill 21 last February It was clear Regarding the broad capacity of the Government to implement Section 33. He declined to say whether Bill 21 infringed any Charter rights and said there was no reason to consider the matter further because section 33 had been properly invoked.
As the Supreme Court grapples with the complex case, there is also likely to be a robust public debate as the country approaches a possible federal election this spring. The federal Liberals plan to intervene in the matter, but Ottawa’s final legal approach is uncertain given a possible change in government. Prime Minister Justin Trudeau has said he opposes the preemptive use of Article 33, as Quebec did with Bill 21.
The Conservatives have not said what they will do, but party leader Pierre Poilever has said he opposes Bill 21. Yet Mr. Poilever and the Conservatives have also supported Quebec’s use of Section 33. In February 2023, Mr Poilever and the Conservatives Unanimously voted yes A Bloc Quebecois motion in the House of Commons stated that “it is entirely up to Quebec and the provinces to decide how to use the clause nonetheless.”
The six groups allowed to take a stand in the Bill 21 case are challenging the bill on various legal grounds, including minority language education rights and gender equality rights, which are two parts of the Charter. However, the clause is not superseded.
In its legal submission, Ms. Norrelhawke’s group argued that the Supreme Court should “clarify the extent to which ordinary provincial legislatures can alter Canadian fundamental rights without judicial oversight.”
This theory suggests that courts should be able to reprimand, declare a law to be a violation of rights, even if it recognizes the law. Protected by clause. The Quebec Court of Appeal disagreed with this view.
While Section 33 has long been debated in Canada — and regularly deployed by governments in provinces such as Quebec, Ontario and Saskatchewan in recent years — there remain major unresolved legal questions. The important Supreme Court precedent is the Ford case of 1988, which contains only 14 paragraphs on Section 33, which Focused on Simple technical requirements.
The Supreme Court will hear the Bill 21 case with a maximum of eight judges instead of nine. Justice Mahmood Jamal did not participate in the decision to hear the case or not. He recused himself last July, after Quebec and other groups called on him to back down. Justice Jamal, before being nominated to the Supreme Court in 2021, previously served as chairman of the board of the Canadian Civil Liberties Association, which is involved in the Bill 21 case.
