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Laicity law appeal to be heard by Supreme Court
The Supreme Court of Canada has cleared the way for a hearing against Quebec’s secularity law, Bill 21, which prohibits religious symbols like a hijab or Cross to be worn by government employees.
CNS photo/Christinne Muschi, Reuters
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After a nine-month wait, organizations contesting Quebec’s Bill 21 learned on Jan. 23 that the Supreme Court of Canada (SCC) will hear their case.
“An act respecting the laicity of the state” was passed in June 2019 and has been challenged in the Quebec Superior Court and Court of Appeal on grounds of violation of gender equality rights and rights guaranteed to the English-speaking minority-language community of Quebec. The three groups who have brought the case forward are the National Council for Canadian Muslims, the Canadian Civil Liberties Association and the English Montreal School Board.
Though the SCC does not announce the reasons behind its decision to hear an appeal, the pre-emptive use of the notwithstanding clause to insulate the Act from Charter challenges has been one of the most discussed aspects of the law.
Bill 21 amended the preamble of the Quebec Charter of Human Rights and Freedoms to qualify that “the Quebec nation considers State laicity to be of fundamental importance.”
In reaction to the SCC announcement, Quebec Justice Minister Simon Jolin-Barrette and Secularism Minister Jean-François Roberge wrote on X, “It is paramount, even vital, for Quebec to be able to make its own choices, choices that correspond to our history, our distinct social values and our aspirations as a nation.” Premier François Legault wrote, “We will fight until the end to defend our values and what we are.”
Phil Horgan, lawyer and special counsel to the Catholic Civil Rights League (CCRL), told The Catholic Register that though the CCRL did not intervene on the Quebec case, it has worked with partners specifically on the relation between the notwithstanding clause, religious freedom and the Quebec situation.
Horgan points out that all legislation up to and including the 1867 British North America Act recognizes “religious freedom applicable to Quebec. It was and remains a distinguishing feature of our Canadian confederation and was vigorously opposed by our American neighbours as one of the Intolerable Acts used to oppose the Crown in the American Revolution.”
“Those rights have been recognized with religious, education and language rights both before the Charter in 1982 and post-Charter. An effort to infringe on those religious rights with the imposition of laicity and relying upon the notwithstanding clause from the 1982 Charter should not be allowed to stand against our collective history of recognition of religious freedom principles.”
Clifford Lincoln, former member of the National Assembly and MP for the Montreal riding of Lachine-Lac-Saint-Louis who is lauded for his defence of Charter rights, told the Register that though “one could argue legitimately that a secular state might decide to put aside all overt religious symbols in its official environment,” the attempt to “prevent those who disagree from seeking judicial adjudication is an unacceptable denial of the application of human rights.”
“I believe restrictions such as these are subjects that any wise and open-minded administration should leave aside in the first place. Attempting to block access to judicial review makes it even more unacceptable in a society pledging respect for fundamental rights and freedoms.”
Quebec Superior Court Justice Marc-André Blanchard had criticized the government’s use of the notwithstanding clause but found the approach was “legally unassailable in the current state of the law.”
Bill 21 was the Coalition Avenir Québec’s (CAQ) legislative solution to years of provincial wrangling over the issue of religious accommodation. In 2007, Premier Jean Charest tasked Catholic philosopher Charles Taylor and sociologist Gérard Bouchard with examining provincial attitudes towards religious minorities and to make recommendations based on their consultations.
The Bouchard-Taylor Commission suggested very modest proposals that would see all officers of the law, judges, police officers, prison guards and Crown prosecutors banned from wearing religious attire or symbols while at work. It was also suggested that the crucifix placed over the chair in the National Assembly be removed to another part of the building.
Since the 2008 conclusion of the commission, three separate pieces of legislation have been introduced by three successive governments. In 2013, the governing Parti Québécois introduced the contentious Charter of Quebec Values. The law failed after the PQ lost the election the following year. The Liberal party saw Bill 62, called the “niqab law” as it bans face coverings for those seeking government services, introduced and passed.
For the nationalist Parti Québécois and CAQ, it became a wider discussion of the nature and of the Quebec state. Legault and the CAQ advocate a “closed” secularism that seeks to remove religion from the public square altogether.
A version of this story appeared in the February 02, 2025, issue of The Catholic Registerwith the headline "Way cleared to challenge Quebec’s Bill 21".
Section 33 of the Canadian Charter of Rights and Freedoms is commonly known as the notwithstanding clause. It is often referred to as the override power in that it allows Parliament or provincial legislatures to override sections 2 and 7-15 of the Charter.
It declares in an Act of Parliament that “a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15.” Such a declaration shall be in effect for “five years after it comes into force or on such earlier date as may be specified in the declaration.”
It has been seldom used since 1982, only 27 times, but has seen more frequent use in recent years — eight times since 2018. Quebec leads the way in using the notwithstanding clause, having evoked it 17 times; Ontario and Saskatchewan have used it three times each, Alberta twice and New Brunswick and Yukon once each. On numerous occasions it has received royal assent but not brought into force.
The clause has been used for a number of reasons, most frequently surrounding equality rights, freedom of religion and conscience, Most prominent has been Quebec’s Bill 96 to enshrine French as the province’s official language, Bill 21 asserting that Quebec is a lay state and banning workers from wearing religious symbols such as crosses and hijabs, Quebec’s Bill 95 that brought an end to confessional schools in the province and Saskatchewan’s School Choice Protection Act to protect public funding for non-Catholic students in Catholic schools.
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Section 33 of the Canadian Charter of Rights and Freedoms is commonly known as the notwithstanding clause. It is often referred to as the override power in that it allows Parliament or provincial legislatures to override sections 2 and 7-15 of the Charter.
It declares in an Act of Parliament that “a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15.” Such a declaration shall be in effect for “five years after it comes into force or on such earlier date as may be specified in the declaration.”
It has been seldom used since 1982, only 27 times, but has seen more frequent use in recent years — eight times since 2018. Quebec leads the way in using the notwithstanding clause, having evoked it 17 times; Ontario and Saskatchewan have used it three times each, Alberta twice and New Brunswick and Yukon once each. On numerous occasions it has received royal assent but not brought into force.
The clause has been used for a number of reasons, most frequently surrounding equality rights, freedom of religion and conscience, Most prominent has been Quebec’s Bill 96 to enshrine French as the province’s official language, Bill 21 asserting that Quebec is a lay state and banning workers from wearing religious symbols such as crosses and hijabs, Quebec’s Bill 95 that brought an end to confessional schools in the province and Saskatchewan’s School Choice Protection Act to protect public funding for non-Catholic students in Catholic schools.
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