Will the Supreme Court overturn Bill 21?

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This is a CBC podcast.

Hello, I'm Matt Galloway, and this is the current podcast.

This week, the Supreme Court of Canada is hearing

a landmark challenge to Quebec's Bill 21.

That's the law that banned certain public employees

from wearing visible religious symbols.

I'm Rhett Korr, graduated the day that Bill 21 was adopted,

but had to give up her dream of teaching in Quebec

because she is sick and wears a turban.

It's different to move on the premise of a good job opportunity

or you want to travel the world,

but to move because of religious persecution,

that just makes you feel like a second-class citizen.

On the other side of the argument with the Quebec government

and advocates for secularism or La Site,

people like Mandana Javan.

This is a very bad sign that we start to convert kids

in daycars in schools because I lived that in Iran

and I know how does it work.

This case is part of a long-standing debate

over secularism, nationalism, and multiculturalism

in Quebec to help us understand how we got here.

I'm joined by Daniel Belon.

He's a professor of political science

and director of McGill Institute for the Study of Canada.

Danielle, good morning.

Good morning.

The law that is being challenged in court this week

is called an act representing the elasticity of the state.

Can you explain what that concept means in Quebec?

Yes, so laissity or secularism.

And I think it's important to understand

that they actually use, in English,

in the English translation, they use laissity,

which is a rather weird, not very common use term

in English, rather than secularism

because I think the government wanted to emphasize

the specificity of Quebec's approach

to secularism compared to what is done elsewhere in the country.

I think there is a direct influence from France here

and France is the kind of the birthplace of modern laissity

or secularism and it goes back to the French Revolution

but especially to the Third Republic

in the late 19, early 20th century.

It was the aftermath of the drifters affair,

which involved anti-Semitism, of course.

And modern laissity in France was really about

a strict separation between the state and the church

and the church here was the Catholic Church.

The emphasis was really on Catholicism

and to prevent the Catholic Church

from challenging the, in France, the Republic.

And also attacking, threatening, religious minorities,

including Jewish people, but also Protestants.

Now, if we look at Quebec, the quiet revolution

in the 1960s focused a lot on removing the church

from major institutions like the healthcare system

and the education system.

And so the emphasis was again on the Catholic Church.

That's no longer the case, of course, today in France

or in Quebec and the focus is much more

on religious minorities and that are tied to immigration.

Help us understand that because when it comes

to the current Quebec context,

you have the issue of wearing religious symbols

like a turbine or a hijab, which has become

an explosive political topic in that province

for the last couple of decades.

Why is that the case?

Well, this, I mean, there is a process of secularization

that began during the, the quiet revolution

in terms of the institutions.

So, of course, you had the creation of a,

the Department of Education in Quebec

was only created in 1964.

In Ontario, for example, it was created in 1876.

So there was no Department of Education up to that point

in Quebec because the church was so dominant,

at least on the Francophone side of things.

So gradually, of course, Quebec created

a modern public education system

and gradually religion was removed from it,

but it's only gradual.

It's only in 1997, I think, that we created language based

rather than religion based school boards.

So until that time, it was Catholic versus Protestants

and after that, it became Anglophones versus Francophones.

But I think what has happened since the Bouchard Taylor

Commission in the mid-late 2000

is the emphasis on first reason

what they call reasonable accommodations,

which were really religious accommodations for minorities,

like Jewish people and Muslims.

And then it became a big electoral issue in Quebec,

strongly supported by, at the time,

the ADCU action-democratic du Québec with Mario Zunon.

And it was very successful for them.

Electrally, so then the participé quoi

embrace that logic and that led to the proposal

for so-called Quebec Charter of values

or Charter of Quebec values.

And then the PQ lost in 2014.

The Liberals tried to address this issue

of reasonable accommodations and secularism.

And then, of course, the CHU in 2019 enacted Bill 21.

But Bill 21 goes farther than what the Bouchard Taylor

Commission had recommended

and had recommended a decade earlier.

And the emphasis is really on, as you mentioned earlier,

on religious symbols.

That was not the emphasis of secularism,

laïcité in Quebec during the 1960s, for example.

And this shift, I think the focus on what people wear

and implicitly the focus on religious minorities

is a trend that became in France in the late 1980s

with the La Faire de Foulard, the hijab affair.

So there is an implicit connection

and explicit, in some cases, with Islam

and especially with what woman wear.

I guess the hijab.

The question that people might be asking

from it's out of the province

is there has been a lot of demographic change

elsewhere in the country.

There doesn't seem to be the same level of concern

about religious symbols elsewhere as compared to in Quebec.

You have this challenge to build 21,

but there are laws that go even further.

There's restrictions on public prayer,

there's bans on religious symbols

to daycare workers, for example.

What is this really about, do you think?

There are, I think, a number of factors.

I think one key factor is, and it's often mentioned

that it's an historical factor, if you want,

what is specific about Quebec's history?

There was a very strong role of the Catholic Church

up to the 1960s, and a lot of especially older Francophones

are resentful of the idea of a visible central role

of religion and society, that's tied to their own experience

of what they heard about, you know, the duplicity area,

what happened before the quiet revolution.

There's also, I think, anxieties about Quebec identity,

there is the focus, of course, typically on language,

but that extends beyond that.

The idea that Quebec is a distinct society is different,

and now the, I think, the CQ has emphasized this idea,

and I think the picture is certainly on side with this,

that Laïcité, the way to define it,

is part of Quebec identities.

And there is also, I think, the last point

is the influence of France,

that people elsewhere in Canada

don't always think about that much,

but here in Quebec, if you watch Francophone televisions

or you read Francophone newspapers,

there is quite a few references to Laïcité

and the debates that are taking place in France,

and that is something that is related, I think, to language,

and also, I would say, even, it's a bit of a stretch,

but post-colonial legacies in the sense that Quebec

used to be a French colony,

and I think Quebecers know more about what's going on in France

than, you know, than people elsewhere in Canada.

And in France, there has been talking a lot about Laïcité

about secularism since the late 1980s.

Let me just ask you, finally,

when Bill 21 is introduced, everybody assumed,

or most people, I think, assumed that it would be challenged,

it would go to the Supreme Court.

You have an election in Quebec that's coming up in the fall,

and the Partiquette Pequois is leading in many,

if not all, of the polls leading up to that election,

what do you think the political consequences would be

in Quebec if Bill 21 were to be overturned to the Supreme Court?

Oh, if it would be overturned, especially during,

or just before an electoral campaign,

I think this would be like an earthquake, right?

Or even maybe an atomic bomb,

I don't know what metaphor to use.

Let's be too earthquake, to not be, you know, too dramatic,

but it's still quite dramatic.

I think that it's clear that if it will be overturned,

because the issue here is not just Bill 21 in Laïcité,

it's also the use of the notwithstanding class,

more generally, and people, there is strong support

for the use of the notwithstanding class in Quebec,

and also support for Bill 21 among Francophones,

at least, is strong, especially among older Francophones.

And so, obviously, if they will be, say,

that the Supreme Court will strike down, Bill 21,

there will be a lot of outcry,

there will be, especially, will benefit, I think,

the CQ and the Patskibikwa,

because the Patskibikwa, which is a sovereignist party,

as even a harder line than the CQ,

adopted the harder line than the CQ over secularism,

Laïcité, and also, they, of course,

I mean, both parties defend the autonomy of Quebec,

and that will, and so, the notwithstanding class

is perceived as Quebec, in Quebec as a tool

of provincial autonomy, and also, don't forget

that Quebec never signed the 1981 agreement

that led to patriation in 1982,

and to the adoption of the charter of rights and freedoms.

So, and the PQ, when they were in power from 82 to 85,

they used the notwithstanding class in a blanket manner,

they basically snapped the adopted,

the notwithstanding class for all the new bills

and retrospectively to all the bills in Quebec.

So, and, of course, it's been used a number of times,

quite a few times, since the mid 1980s,

and so, I think that there is strong support in Quebec

for both Bill 21.

Although it's controversial, we absolutely write,

but among Francophones, and even if you take

the population general's support when it was enacted,

was about two-third of Quebecers supporting it,

and support for the use of the notwithstanding class

that people strongly associate with the autonomy

of the province.

Those are high stakes.

Daniel, we will leave it there,

and we're gonna speak more just about the notwithstanding

cause more broadly, but I really appreciate you being here.

Thank you very much.

You're most welcome, take care.

Daniel Belon is a Professor of Political Science,

Director of the McGill Institute for the Study of Canada.

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The decision that the Supreme Court

justices will render on Bill 21 will, in large part,

determine whether Canada continues to be a liberal democracy

that is the envy of the world or something less,

something that we cannot afford to accept.

If the Supreme Court agrees with them,

that means it's a constitutional revolution,

it will give much more power to the judicial branch

and more precisely to the Supreme Court

and the last power to the legislature,

especially province sole legislature,

especially the National Assembly of Quebec.

Those were Stephen Brown of the National Council

of Canadian Muslims in Guillaume,

or so the lawyer for the Mouvement Lake de Québec.

They are on opposing sides of this issue,

but both see the stakes here as absolutely crucial

as you heard to the future of democracy in Canada.

This case before the Supreme Court has attracted

a huge amount of interest across the country.

A record number of respondents and interveners

are weighing in, so to help us understand

what is at stake here?

We're joined by Eric Adams,

constitutional law professor at the University

of Alberta, Eric at point two.

Yeah, thanks, great to be here.

What is this case really about, do you think?

Well, one of the signals right away

that this is a momentous moment at the Supreme Court

is the number of days that they've devoted

to this almost an entire week, four days of hearing.

That's very unusual, almost unprecedented.

And as you said off the top,

a number of parties, interveners,

and governments that have taken a direct position here.

Now, Professor Bailong, we spoke to you a moment ago,

was talking about this case as a story,

very much of Québec,

but the fact that the notwithstanding clause

was used in this legislation

also makes it a story of Canada and of our constitution.

And so a number of governments,

a number of citizens,

and a number of, I can tell you the legal community

are all watching this very closely.

Some of those interveners are arguing

that the court should establish limits

on the use of the notwithstanding clause.

What would that look like

if that were to happen?

Do you think?

I think it's important first to just note

that the notwithstanding clause

has of course been used relatively frequently in Québec,

but it received an uptick in uses

starting in about 2017,

and we saw uses by Saskatchewan, Ontario, Alberta.

And so that has placed it back

into both the political conversation

and also the legal conversation.

And it was only one previous Supreme Court of Canada

that really dealt with the notwithstanding clause

head on in 1988.

And so this is really the first time in almost 40 years

that the Supreme Court has had the notwithstanding clause,

what it means and how it operates

within our constitution squarely back before it.

And so for that reason alone,

it's a monumental moment.

And a number of people are making the argument,

both that the Supreme Court should change the approach

that it adopted in 1988,

which is a relatively hands-off approach

to the notwithstanding clause and try and provide

some scope or limit for its use

beyond perhaps what is even written in the text.

Other people and certainly a number of governments,

provincial governments that have used the clause

are saying the absolute opposite

that this is a linchpin of the charter burden

and that it preserves parliamentary sovereignty

for governments in provincial provinces

and federally to make any law

and to make that decision without the interference of courts

of when the notwithstanding clause protects that law.

What did you make of the fact

that a sitting politician in the Attorney General of Ontario

as well as the deputy Attorney General of Alberta

were in the court themselves yesterday

making arguments saying keep your hands off

of the notwithstanding clause?

We certainly don't see that very often.

And I think it was a strategic move

on the part of both Ontario and Alberta

to signal to the court.

I mean, they appeared by Zoom,

which is the court's practice on how

interveners who are not direct parties appear in the case.

But I think they wanted to send a signal to the court.

And I think the court is certainly of the view

that this is an important case.

They probably don't need reminding,

but just how important this matter is

to the governments that have been using the clause

because what they see as a potential here

is that the Supreme Court is going to possibly,

if they accept some of the arguments that are before them,

limit either limit the ability of provinces

to use the clause in some ways

by adding some conditions

or to once a province invokes the notwithstanding clause.

One of the arguments is that the court still has the capacity

to rule on whether or not a charter infringement exists.

They can't strike that law down,

but perhaps they might still be able to,

in a judicial decision, either declare or describe

the ways in which this piece of legislation

would affect freedom of religion,

freedom of equality rights.

They can't do anything about it,

but they can state in law that this infringement occurs.

A number of parties are asking that the court adopt

that practice and Ontario Quebec to sketch on

or saying very forcefully that no,

the notwithstanding clause should not allow that practice.

Just in the last couple of minutes that we have,

people will say that this could lead to a constitutional crisis.

There are very deep legal ramifications for this as well,

but in very, I guess concrete terms,

how would this decision by the court affect Canadians,

particularly outside of Quebec?

We've talked a little bit about insight Quebec,

but outside of Quebec,

how could this decision affect people across the country?

Well, since 1982, we've had two realities coexist.

One is that you've got a charter of rights and freedoms

that guarantees your rights to freedom of religion,

to equality, to life liberty and obscurity of the person.

And it means that government laws

cannot deprive you of those rights

if the interference in those rights is unreasonable.

And that's us.

That was a signal change in Canadian constitutional law

when that rights moment occurred.

But you just have to read 32 sections of the charter later.

You get to 33, and that section says

that actually governments,

parliament and provincial legislatures can protect their laws

from certain of the charter rights

that would otherwise be there to strike those laws down

for a period of five years.

And governments can renew that five year shield

if you want to use that metaphor.

And so for Canadians, what is the meaning of the charter?

What are those meanings of the rights that are guaranteed there?

And what is the capacity of governments

to potentially use the notwithstanding clause shield

to continue to have an impact

on the way that people experience their rights and freedoms

in this country and what powers do governments have

to define their own sense of where those rights

and their limits should be.

All of that is squarely before the court.

That's a sweeping as you could imagine in some ways.

That's the reason that this course has been identified

for years as being one to watch.

And we'll have to see what the court does

with this monumental task that it has in front of it.

We will watch closely.

And perhaps speak again in the meantime, Eric,

thank you for this really helpful.

Yeah, pleased to be here.

Eric Adams is a constitutional law professor

at the University of Alberta.

He was in Edmonton.

You've been listening to the current podcast.

My name is Matt Galloway.

Thanks for listening.

I'll talk to you soon.

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