Quebec says Bill 21 opponents are trying to overturn established law

Globe and Mail

8 hours ago

The Quebec government says legal opponents challenging its secularism law at the Supreme Court of Canada are merely rehashing old, failed arguments in an effort to overturn established legal precedent.
On Tuesday, Quebec filed 100 pages of legal arguments to the Supreme Court ahead of a hearing in which it will defend Bill 21 in court for a third time. The province won two previous decisions in the lower courts in Quebec, which led to the current appeal at the Supreme Court.
Quebec's Bill 21, enacted in 2019, bans public sector workers, including teachers, from wearing religious symbols such as hijabs on the job. The province's goal is to promote secularism in Quebec, but critics argue it is an attack on minority rights.
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The Bill 21 case represents a landmark hearing at the Supreme Court, where the country's top court will consider governments' ability to override the rights and freedoms of Canadians in detail for the first time in almost four decades.
The provincial government used Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause, to shield the secularism law from constitutional challenges on the basis of freedom of religion and other rights.
The province's Tuesday filing says opponents are trying to circumvent its proper use of Section 33. In French, the filing says such arguments are asking the Supreme Court 'to amend established law.'
Quebec further said its opponents are using legal arguments that have previously failed and that the challengers have not exposed errors in last year's Quebec Court of Appeal decision on Bill 21, which broadly upheld the provincial government's actions.
The appeal court, Quebec said in its filing, 'conducted a detailed and meticulous analysis of all the arguments raised by the appellants and rightly dismissed them.'
The key precedent is a 1988 case called Ford, where the Supreme Court considered Section 33 on a narrow legal basis but didn't delve in deeper questions about the notwithstanding clause. The Supreme Court at the time said the 'essential requirement' is for a government that uses Section 33 to name the Charter sections it aims to override.
The basis of Quebec's Bill 21 argument is that the Ford decision is a precedent that should not be reconsidered. In Bill 21, Quebec stated it was using Section 33 to override the 10 sections of the Charter to which the notwithstanding clause can apply.
But in the decades since Ford, and especially in recent years as more provincial governments have used Section 33 to shield laws, legal academics and others have argued there may be more for the top court to say about the notwithstanding clause.
That includes whether it can be invoked pre-emptively, as Quebec did with Bill 21, or whether a court can declare rights have been violated even if a law is allowed to continue to operate because of Section 33. This week, the Saskatchewan Court of Appeal said there is room for such judicial declarations. Last year, the Quebec appeal court came to the opposite conclusion.
Six groups are appealing last year's Quebec Court of Appeal decision. They filed their legal arguments in mid-April.
The appellants want the Supreme Court to overturn Bill 21. Among the arguments is a call to reconsider the 1988 Ford precedent. Further arguments include looking at other parts of the Charter, the Constitution, Canada's history and the limits of provincial powers to question the validity of Quebec's use of Section 33 in Bill 21.
In Quebec's arguments filed Tuesday, the province said the Bill 21 case 'does not raise any new issues distinct from those considered in Ford.' Quebec then suggested that two of the appellants are effectively trying to rewrite Section 33 of the Charter 'to add conditions that are not found there.'
A Bill 21 hearing has not been scheduled, but it could happen this winter. Supreme Court Chief Justice Richard Wagner has said it could be heard over three days. Most Supreme Court hearings take one day; rare cases occupy two days.
The landmark Bill 21 case has attracted a record number of intervenors, as 38 outside groups will present written legal arguments to the court by mid-September.
The federal government is also set to file its legal arguments at the same time, alongside six provincial attorneys-general, including Ontario, British Columbia and Alberta. Ottawa has previously expressed concern about provincial governments pre-emptively invoking Section 33.