MONTREAL — The Supreme Court of Canada's decision to hear a challenge of Quebec's secularism law sets up a final legal battle between the provincial government and minority and civil rights groups — and possibly a showdown between Quebec and Ottawa.
The country's top court announced Thursday morning it has granted leave to appeal to several groups that oppose the law, which prohibits civil servants in positions of authority, including teachers and police officers, from wearing religious symbols on the job.
Bill 21 was passed in 2019 by the Quebec government, which pre-emptively invoked Section 33 of the Canadian Charter of Rights and Freedoms, known as the notwithstanding clause, to shield the legislation from court challenges over fundamental rights violations.
Though critics say the law is discriminatory and unconstitutional, the Quebec government has long argued Bill 21 is reasonable, and reaction from the province came swiftly following the court's decision.
"Quebec has chosen secularism in the public sector," Quebec Premier François Legault said in a statement on X. "We will fight to the end to defend our values and what we are."
The federal government plans to intervene in the case, though the Liberal party is now in the thick of a leadership race. "When it's a matter of national importance and there's a national conversation about interpreting Charter rights that will have an impact right around the country, we are going to be there," Justice Minister Arif Virani told reporters Thursday. "And what we're going to do when we're there is we're going to defend the Charter that we helped create over 40 years ago."
Virani said he presumes that all candidates for the Liberal leadership "will continue our support as a party and government to protect the rights that are in the Canadian Constitution."
But a possible spring election could lead to a change in government before the case is heard. The Conservatives have not said what approach they would take, though party leader Pierre Poilievre has said he opposes the law.
In a statement, Quebec Justice Minister Simon Jolin-Barrette and Secularism Minister Jean-François Roberge warned that any federal government intervention would represent "not only a lack of respect, but could not be considered anything other than an attack on the autonomy of federated states."
Their warning was echoed by Bloc Québécois Leader Yves-François Blanchet, who denounced any federal involvement in the case. "We do not mind this debate being held in the Supreme Court of Canada. That's normal, that's why it's there," he said. "We do mind that every Canadian federalist party supports the idea to use the money of Quebecers against Quebec, against a law duly adopted in Quebec, which is largely supported in Quebec."
Several groups have fought the law since it was passed, and on Thursday they welcomed the chance to have the Supreme Court rule on its constitutionality. Harini Sivalingam, director of the equality program at the Canadian Civil Liberties Association — one of the groups challenging the law — said she hopes the court will strike down Bill 21 and set guidelines on governments' use of the notwithstanding clause.
“What is at stake is whether governments can violate our rights and freedoms without any judicial oversight,” she said during a press conference in Ottawa.
Virani said the government has "significant concerns" about pre-emptive use of the notwithstanding clause. Since Bill 21 was passed, other provinces have made more frequent use of Section 33. In 2023, the Saskatchewan government invoked the clause to pass a policy requiring parental consent for students under 16 to use their preferred name or pronouns at school.
Stephen Brown, CEO of the National Council of Canadian Muslims, said the Quebec government set a "devastating legal precedent" with Bill 21. “(Legault) let the genie of legal authoritarianism out of the bottle," he told reporters in Ottawa. “What was supposed to be an extraordinary use of power has now become the norm.”
Jérémy Boulanger-Bonnelly, a lawyer representing the Coalition Inclusion Québec, another plaintiff in the case, said that even if the top court finds that the use of the notwithstanding clause is valid, he's hoping the judges will issue a declaration that Bill 21 violates Charter rights.
Other plaintiffs are fighting the law on other grounds, including minority language and gender equality rights, which the notwithstanding clause does not override. On Thursday, official languages commissioner Raymond Théberge said he plans to intervene in the case to defend the English-speaking minority's right to control their own education.
To date, the secularism law has been largely upheld by lower courts. In April 2021, Quebec Superior Court Justice Marc-André Blanchard ruled Bill 21 was mostly legal, but exempted English-language school boards.
Blanchard criticized the government’s use of the notwithstanding clause, and found the law violates the rights of Muslim women and “dehumanizes” those affected. Still, he found the government’s approach was “legally unassailable in the current state of the law.” Last February, the Quebec Court of Appeal upheld the secularism law and overturned the exemption for English schools.
In a rare move, Supreme Court Justice Mahmud Jamal recused himself from the case last summer at the request of the attorney general of Quebec, who had cited his past connection to the Canadian Civil Liberties Association.
This report by The Canadian Press was first published Jan. 23, 2025.
Maura Forrest, The Canadian Press
