How a ban on religious symbols has triggered a Canadian constitutional debate

## Summary
How a ban on religious symbols has triggered a Canadian constitutional debate 4 hours ago Share Save Jessica Murphy Canada digital editor, Toronto Share Save NurPhoto via Getty Images A controversial secularism law in Quebec is heading to Canada's Supreme Court - but the outcome will impact much more than religious expression in Canada, legal experts say. The Canadian Civil Liberties Association (CCLA) called Quebec's arguments in court "spine-chilling". "Could a government invoke [the clause] to ban abortion? To legalise torture?" the CCLA wrote in a recent op-ed in French-language newspaper Le Devoir. "According to the Quebec government's logic, even in such cases, the courts would not only be powerless but also bound to silence." On Monday, the court will begin four days of hearings on a constitutional challenge to Bill 21, with more than 50 interveners including the federal government. Quebec argues that whether or not the bill restricts freedoms is not the issue as it is shielded by the notwithstanding clause. "Section 33 constitutes, in a way, one of the cornerstones of the Canadian Charter," Quebec argues in legal briefings.

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How a ban on religious symbols has triggered a Canadian constitutional debate
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Jessica Murphy
Canada digital editor, Toronto
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NurPhoto via Getty Images
A controversial secularism law in Quebec is heading to Canada's Supreme Court - but the outcome will impact much more than religious expression in Canada, legal experts say.
The case has the potential to test national unity and the balance between courts and elected officials.
"This case is probably going to be the most important constitutional case in a generation," said Christine Van Geyn, executive director at the Canadian Constitution Foundation.
At the heart of the case is Bill 21, which bars civil servants like judges, police officers and teachers from wearing religious symbols at work. It was passed in 2019, by the governing Coalition Avenir Quebec (CAQ).
But to withstand legal challenges, legislators employed a unique Canadian invention, the controversial "notwithstanding clause". That legal loophole allows governments
to override certain constitutional rights, including freedom of religion and equality rights.
The Canadian Civil Liberties Association (CCLA) called Quebec's arguments in court "spine-chilling".
"Could a government invoke [the clause] to ban abortion? To criminalise political speech critical of the government? To legalise torture?" the CCLA wrote
in a recent op-ed
in French-language newspaper Le Devoir.
"According to the Quebec government's logic, even in such cases, the courts would not only be powerless but also bound to silence."
On Monday, the court will begin four days of hearings on a constitutional challenge to Bill 21,
with more than 50 interveners including the federal government.
What is Bill 21?
As in France, Quebec's state secularism - or laïcité - is central to its identity.
Similar to the concept of America's "separation of church and state", proponents of laïcité believe that state institutions should be religiously neutral.
But what that means in day-to-day life has become the subject of much debate.
Supporters of Bill 21 argue it's a reasonable step towards enshrining the separation of church and state in Quebec, while critics say it is discriminatory, has made it more difficult for religious minorities to integrate, and that it unfairly targets Muslim women - though the legislation does not single out any religion.
In an attempt to insulate the legislation from legal battles, the CAQ pre-emptively included the "notwithstanding clause" in the bill.
A secularism law some women say makes them feel like 'outsiders' heads to Canada's top court
That clause is section 33 of the Canadian constitution. It allows a provincial or federal government to override certain "fundamental freedoms" of religion, expression, and association; as well as legal and equality rights.
The clause is in effect for a five-year period, which is meant to give time for voters to respond with political consequences if they disagree with the law.
It is subject to renewal, and in theory can be extended indefinitely.
NurPhoto via Getty Images
Polls suggest that a majority of people in Quebec support Bill 21
Why does Canada have a notwithstanding clause?
In the early 1980s, Canada was seeking to repatriate its constitution from the United Kingdom and to incorporate a Charter of Rights and Freedoms, similar to the US Bill of Rights.
The clause was used as a "grand bargain" to get all the provinces on board, including some who were concerned a rights charter would give more power to courts than to democratically elected legislators.
It applies to some but not all charter rights - democratic and language rights are excluded, for example.
The notwithstanding clause was brought in as a safety valve. Although it has been used several times by Quebec over the past few decades, it has increasingly been employed by other provinces to introduce controversial legislation.
Aside from Bill 21, the clause has been invoked recently by Ontario to cut the size of Toronto's city council, by Alberta to order striking teachers back to work, and by Saskatchewan to require parental consent before students under 16 could change their names or pronouns at school.
That has led some to argue it is being used beyond the general understanding that it would only be used as a last resort.
Errol Mendes, a law professor at the University of Ottawa who is also an intervener in the case for the International Commission of Jurists Canada, said that he and others warned the clause was overly broad and could be misused.
"And our predictions were coming true now, because there slowly started to be more and more use of the clause."
This week's hearing will be the first time the Supreme Court has heard a challenge to the provision since 1988.
Watch: Quebec debates stricter rules on religion in public spaces - here's what people think
What do the opposing sides say?
The Canadian Civil Liberties Association and Ichrak Nourel Hak - a Muslim teacher in Quebec who wea

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## Expert Analysis

### Merits
- The case has the potential to test national unity and the balance between courts and elected officials. "This case is probably going to be the most important constitutional case in a generation," said Christine Van Geyn, executive director at the Canadian Constitution Foundation.

### Areas for Consideration
- To legalise torture?" the CCLA wrote in a recent op-ed in French-language newspaper Le Devoir. "According to the Quebec government's logic, even in such cases, the courts would not only be powerless but also bound to silence." On Monday, the court will begin four days of hearings on a constitutional challenge to Bill 21, with more than 50 interveners including the federal government.
- Supporters of Bill 21 argue it's a reasonable step towards enshrining the separation of church and state in Quebec, while critics say it is discriminatory, has made it more difficult for religious minorities to integrate, and that it unfairly targets Muslim women - though the legislation does not single out any religion.
- Errol Mendes, a law professor at the University of Ottawa who is also an intervener in the case for the International Commission of Jurists Canada, said that he and others warned the clause was overly broad and could be misused. "And our predictions were coming true now, because there slowly started to be more and more use of the clause." This week's hearing will be the first time the Supreme Court has heard a challenge to the provision since 1988.

### Implications
- How a ban on religious symbols has triggered a Canadian constitutional debate 4 hours ago Share Save Jessica Murphy Canada digital editor, Toronto Share Save NurPhoto via Getty Images A controversial secularism law in Quebec is heading to Canada's Supreme Court - but the outcome will impact much more than religious expression in Canada, legal experts say.
- The Canadian Civil Liberties Association (CCLA) called Quebec's arguments in court "spine-chilling". "Could a government invoke [the clause] to ban abortion?
- To legalise torture?" the CCLA wrote in a recent op-ed in French-language newspaper Le Devoir. "According to the Quebec government's logic, even in such cases, the courts would not only be powerless but also bound to silence." On Monday, the court will begin four days of hearings on a constitutional challenge to Bill 21, with more than 50 interveners including the federal government.
- Similar to the concept of America's "separation of church and state", proponents of laïcité believe that state institutions should be religiously neutral.

### Expert Commentary
This article covers quebec, clause, bill topics. Notable strengths include discussion of quebec. Areas of concern are also raised. Readability: Flesch-Kincaid grade 0.0. Word count: 1223.