{"id":494118,"date":"2026-02-23T13:01:12","date_gmt":"2026-02-23T13:01:12","guid":{"rendered":"https:\/\/www.newsbeep.com\/ca\/494118\/"},"modified":"2026-02-23T13:01:12","modified_gmt":"2026-02-23T13:01:12","slug":"why-the-supreme-court-challenge-of-quebecs-secularism-law-matters-to-the-whole-country","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/ca\/494118\/","title":{"rendered":"Why the Supreme Court challenge of Quebec’s secularism law matters to the whole country"},"content":{"rendered":"

The upcoming legal challenge<\/a> of Quebec\u2019s secularism law, Bill 21, before the Supreme Court of Canada has evolved from a fight over whether teachers can wear hijabs<\/a> in the classroom into a debate over who should get the final say when deciding basic questions of rights and freedoms in Canada: courts or elected legislatures?<\/p>\n

It\u2019s a question that resonates more than ever, as some other Canadian provinces are joining Quebec in suspending people\u2019s constitutional rights<\/a>.<\/p>\n

\u201cThere’s huge implications for the country as a whole from coast to coast to coast on this,\u201d University of Ottawa law professor Errol Mendes told CBC News.<\/p>\n

The arguments before the Supreme Court begin March 23.\u00a0<\/p>\n

The top court will hear from Quebec\u2019s attorney general, teachers and religious and civil rights groups challenging the law, from five other provinces and the federal government, and dozens of groups and individuals intervening in the case.<\/p>\n

At the heart of the debate is the notwithstanding clause \u2014 Section 33 of the Canadian Charter of Rights and Freedoms \u2014 a crucial mechanism<\/a> for how we try to determine what\u2019s right and wrong in this country.<\/p>\n

\u201cSection 33 constitutes, in a way, one of the cornerstones of the Canadian Charter,\u201d the lawyer for Quebec\u2019s attorney general argued in the province\u2019s legal brief submitted to the Supreme Court.<\/p>\n

\u201cWithout the addition of the notwithstanding clause, the Charter would likely never have come into being,\u201d the brief said.<\/p>\n

WATCH | What are the implications for the rest of Canada?:\"\"<\/p>\n

How the Supreme Court challenge of Quebec\u2019s Bill 21 could affect the rights of all Canadians<\/p>\n

Quebec\u2019s Bill 21 bans religious symbols for some civil servants. Now, the legal battle has shifted from the ban itself to whether the province overstepped by invoking the notwithstanding clause in the text of the law, to bypass Charter rights.<\/p>\n

Former Quebec Liberal MNA and MP Clifford Lincoln sees it differently.<\/p>\n

Lincoln has a history with the notwithstanding clause<\/a> \u2014 he resigned from a provincial cabinet post over it in 1988.<\/p>\n

In an interview with CBC, Lincoln said including the clause in the Charter was a terrible decision, a ticking legislative time bomb that is now exploding.<\/p>\n

\u201cI think we are paying a huge price for that compromise,\u201d Lincoln said.<\/p>\n

It\u2019s these two visions of the notwithstanding clause<\/a> that will be debated before the Supreme Court justices over five days next month in Ottawa.<\/p>\n

What is the notwithstanding clause?<\/p>\n

The notwithstanding clause<\/a> was born during constitutional negotiations in 1981 as a compromise<\/a> to appease some skittish provinces.<\/p>\n

They were worried the new Charter would give too much power to courts and not enough to their elected legislatures.<\/p>\n

From left to right: Prime Minister Pierre Trudeau, Finance Minister Allan MacEachen, and Quebec Premier Ren\u00e9 L\u00e9vesque attend the constitutional conference in Ottawa, Nov.5, 1981. (The Canadian Press)<\/p>\n

The clause provides provinces with a sort of legal escape hatch: if courts determine a particular piece of legislation violates the Charter, provinces can invoke the clause and adopt the legislation anyway.<\/p>\n

\u201cThe original intention was to only use it in the most extreme situations, where judges have gone perhaps too far, and the fundamental ability of the legislature to fill its most critical function has been stymied,\u201d Mendes said.<\/p>\n

But Karine Millaire, a constitutional law professor from Universit\u00e9 de Montreal who, along with Mendes, is representing the International Commission of Jurists as an intervenor in the Bill 21 case, said it hasn\u2019t quite worked out that way.<\/p>\n

\u201cIt was not meant to become the rule rather than the exception,\u201d Millaire said.<\/p>\n

Use of the notwithstanding clause has historically been pretty rare, but Bill 21<\/a> seems to have opened the floodgates<\/a>.<\/p>\n

A constitutional first<\/p>\n

Bill 21 was the culmination of a longstanding debate <\/a>about secularism in Quebec.<\/p>\n

Among other things, the bill prohibits some civil servants, including teachers, Crown prosecutors, police officers and judges from wearing religious symbols on the job.<\/p>\n

\"ABill 21 generated outrage from teachers’ unions as well as civil rights and religious groups after it was adopted. (Ivanoh Demers\/Radio-Canada)<\/p>\n

The Coalition Avenir Qu\u00e9bec (CAQ) government presented the bill as a reasonable compromise<\/a>, but it generated outrage<\/a> from civil rights and religious groups.<\/p>\n

The CAQ also used the notwithstanding clause for Bill 21 in a way the clause had never been used before.<\/p>\n

In the past, provincial governments would pass a law, it would be challenged in court, and if the law was deemed to be invalid because it violated Charter rights, only at that point would provinces invoke the clause.\u00a0<\/p>\n

With Bill 21, the CAQ decided to invoke the clause from the beginning, baking it right into the written text<\/a> of the legislation.<\/p>\n

This, in theory, would protect the law from potential court challenges and allow the province to implement it right away.<\/p>\n

And while the pre-emptive invocation of the clause hasn\u2019t prevented legal challenges<\/a>, it has so far allowed Bill 21 to survive<\/a> them\u00a0in lower courts.<\/p>\n

Using the clause pre-emptively has also become more common in the rest of Canada, most notably with Alberta<\/a> and Saskatchewan<\/a> doing it to protect laws that restrict rights for trans people, and Ontario giving it a spin to try to stop a strike<\/a> at schools.<\/p>\n

\"PeopleUnion members, residents and parents rally at the Saskatchewan legislature in 2023 as the Saskatchewan government is expected to introduce legislation that invokes the notwithstanding clause for its controversial school pronoun policy. (CBC \/ Radio-Canada)<\/p>\n

But Quebec leads the way, invoking the clause pre-emptively for a series of bolstered secularism laws<\/a> and language legislation<\/a>.<\/p>\n

\u201cToday it’s become commonplace for the Quebec government to do it on every piece of major legislation,\u201d Lincoln said.<\/p>\n

The outcome of the Bill 21 case in the Supreme Court will have consequences for all those pieces of legislation, in Quebec and beyond.<\/p>\n

Bill 21 violates Charter \u2014 but that’s not the point<\/p>\n

One thing the case won\u2019t be is a debate about whether or not Bill 21 violates certain Charter rights.<\/p>\n

It clearly does, as spelled out in the initial 2021 Quebec Superior Court decision<\/a>.\u00a0<\/p>\n

But the Superior Court and later the Quebec Court of Appeal both upheld Bill 21.<\/p>\n

The Court of Appeal in its decision<\/a> explained the case wasn\u2019t about whether or not Bill 21 was a good idea, but about whether or not Quebec had the legal authority to use the notwithstanding clause pre-emptively to implement the law.<\/p>\n

\"AThe Quebec Court of Appeal in its 2024 decision said the justification for Bill 21 was debatable, but that it was only looking at the legal aspects when it upheld the law. (Simon-Marc Charron\/CBC)<\/p>\n

\u201cOne can certainly have many different views on the [laicity] act and its appropriateness, whether from a political, sociological or moral perspective,\u201d the Appeal Court decision said.<\/p>\n

\u201cThis judgment, however, will evidently consider only the legal aspect of the debate,\u201d the decision said.<\/p>\n

The Supreme Court will likely look at the case through that same narrow legal lens.<\/p>\n

The arguments from Quebec and other provinces<\/p>\n

Quebec\u2019s main argument in defence of its pre-emptive use of the notwithstanding clause is that there\u2019s nothing written in the Charter that says the clause can\u2019t be used that way.<\/p>\n

\u201cSection 33 does not impose any legal obligation on the legislature to \u2018justify\u2019 the use of the derogation provision, either at the time of its adoption or subsequently before the courts,\u201d Quebec said in its legal brief.<\/p>\n

The attorney general of Ontario argues along the same lines.<\/p>\n

\u201cIf the drafters of the Charter had desired additional procedural or substantive requirements for invocations of Section 33, they would have set them out. They did not,\u201d Ontario\u2019s legal brief said.<\/p>\n

Karine Millaire thinks that\u2019s a pretty weak argument.<\/p>\n

\u201cA very important part of our constitutional law is unwritten,\u201d Millaire said.<\/p>\n

Millaire said she and others will try to stress to the court that those unwritten principles, particularly involving protection of minorities, have to be considered when talking about invoking the clause pre-emptively.<\/p>\n

So far, that argument hasn\u2019t worked in lower courts.<\/p>\n

The Queen signs Canada’s constitutional proclamation in Ottawa on April 17, 1982, as Prime Minister Pierre Trudeau looks on. Some say Trudeau and the others who wrote the Charter of Rights and Freedoms weren’t precise enough in defining the limits of the notwithstanding clause. (Ron Poling\/The Canadian Press)<\/p>\n

Lincoln believes that\u2019s because the drafters of the Charter weren’t precise enough about how the notwithstanding clause should be used.<\/p>\n

\u201cI don’t think good intentions or wishes are enough when it comes to legislation,\u201d Lincoln said.<\/p>\n

Another argument provinces defending pre-emptive use of the clause make is that it can only be invoked temporarily \u2014 up to five years \u2014 so any potential damage it can do is limited.<\/p>\n

Detractors of the clause argue that\u2019s a nice idea in theory, but in practice five years can be long and difficult for people whose rights are suspended.<\/p>\n

Bill 21, for example, was passed at the beginning of the CAQ government\u2019s first mandate in 2019. When the CAQ was re-elected in 2022 it renewed the clause, so the law is still in effect. <\/p>\n

Quebec and other provinces argue that elected legislatures represent the will of the population, and if the will of the population is to suspend certain fundamental rights, so be it.<\/p>\n

Lincoln said that line of thinking is dangerous.<\/p>\n

\u201cThe whole idea of a Charter of Rights is to put a brake on legislative powers so that fundamental rights are preserved for minorities,\u201d Lincoln said.<\/p>\n

\u201cIf you don’t have that and you say parliament is the final arbiter, I mean, that’s what happens in Russia. That’s what happens in all dictatorships.\u201d<\/p>\n

Consolation prize<\/p>\n

The groups challenging the pre-emptive use of the notwithstanding clause are using many creative legal arguments, but they\u2019re realistic about the fact that those arguments might not work.<\/p>\n

So they have a kind of backup plan to try to claim a consolation prize.<\/p>\n

They want courts to be able to rule on the constitutionality of legislation where the clause has been invoked pre-emptively, even if those rulings would have no power to strike down legislation.<\/p>\n

Bennett Jensen, legal director for LGBTQ2S+ rights group Egale Canada, which is intervening in the case, said such court decisions would be useful.<\/p>\n

\u201cThe court would still consider evidence and make rulings about whether or not Charter rights had in fact been violated,\u201d Jensen said.\u00a0<\/p>\n

\u201cThe public would then have the benefit of that judicial pronouncement when making decisions, for example, at the ballot box.\u201d<\/p>\n

There\u2019s a split on this idea between provinces intervening in the case. Quebec, Ontario, Alberta and Saskatchewan are against it, but Manitoba and B.C. think it\u2019s a good idea.<\/p>\n

Will Bill 21 be struck down?<\/p>\n

Many legal experts think Bill 21 will likely survive this Supreme Court challenge largely unscathed.<\/p>\n

Mendes said he and other lawyers arguing against the bill will still try their best to convince the court to strike down the law.<\/p>\n

\u201cI would love them to do that, but my pessimistic answer is I’m not sure they will,\u201d he said.<\/p>\n

But he thinks the court might at least weaken or clarify the pre-emptive use of the notwithstanding clause, so that governments might be more inclined to think twice before doing it.<\/p>\n

Lincoln also thinks it\u2019s unlikely Bill 21 will be struck down.<\/p>\n

\u201cI hope and pray every day that the Supreme Court might say this has gone too far. We’ve got to put restrictions on it. I really hope so,\u201d he said.<\/p>\n","protected":false},"excerpt":{"rendered":"The upcoming legal challenge of Quebec\u2019s secularism law, Bill 21, before the Supreme Court of Canada has evolved…\n","protected":false},"author":2,"featured_media":494119,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22],"tags":[49,48,295,66],"class_list":{"0":"post-494118","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-environment","8":"tag-ca","9":"tag-canada","10":"tag-environment","11":"tag-science"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/494118","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/comments?post=494118"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/494118\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media\/494119"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media?parent=494118"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/categories?post=494118"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/tags?post=494118"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}