Canada’s bishops told the Supreme Court of Canada that Quebec’s secularism legislation Bill 21 “denies the divine” going well beyond provincial jurisdiction by imposing an anti-religious ideology on the province.
The bishops were among more than 50 intervenors presenting arguments at a landmark Supreme Court of Canada hearing into the constitutionality of Quebec’s 2019 secularism law. The hearing, one of the longest in the court’s history, ran from March 23–26. The court reserved its decision, with a ruling expected later this year.
The secularism law, which lower courts have twice upheld, prohibits certain public employees — such as teachers and police officers — from wearing religious symbols while at work.
Toronto lawyer Phil Horgan, president and general counsel of the Catholic Civil Rights League (CCRL), argued on behalf of the Canadian Conference of Catholic Bishops (CCCB), summarizing a factum that argued the “purpose and effect” of Quebec’s legislation is to “amend Canada’s federal constitution by imposing an anti-religious, non-neutral ideology, which goes beyond Québec’s jurisdiction.”
Such a “drastic” change can only be made by the federal government using its authority over criminal law or its constitutional “peace, order, and good government” powers, according to the bishops’ argument.
Quebec preemptively invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms when it drafted Bill 21 to shield it from judicial review.
Federal and provincial governments can invoke the notwithstanding clause of the Constitution to temporarily prevent courts from invalidating legislation as unconstitutional.
The timing and impact of the use of Charter Section 33 became a significant issue during the four days of hearings and will likely be central in the court’s analysis, Horgan told The Catholic Register.
The appellants challenging Bill 21 include individual teachers directly affected by it as well as advocacy groups including the National Council of Canadian Muslims (NCCM), the Canadian Civil Liberties Association (CCLA), and the Legal Committee of the Coalition Inclusion Québec. They argue Bill 21 is “ultra vires,” beyond the powers of provincial jurisdiction.
In a five-minute oral argument, Horgan told the seven justices that “Canada’s existing federal constitution is pluralist and pro-religion.” Although “the doctrine of state neutrality is well established, Canada has never adopted laicity or an absolutist separation of church and state,” he said.
Justice Malcolm Rowe questioned Horgan on the point, asking: “Other than the reference to the supremacy of God in the preamble to the Charter, would you direct me to the provision in the Constitution which is pro-religion?”
Horgan cited Section 93 of the Constitution Act, 1867, which protects denominational school rights and privileges, and noted federal charity law recognizes religion as a public good.
Horgan said he wasn’t concerned by the pushback, noting judges often ask questions “not so much to get the answers from counsel but to help … persuade other members of the bench on some of the merits of the argument.”
In its factum, the CCCB said Bill 21 “turns the expression of religious belief, through the wearing of symbols, into something to be punished because such expression now conflicts with the dominant philosophical posture of laïcité.”
Just as religious symbols are an illustration of underlying personal faith, “the prohibition of religious symbols manifests an outlook from the provincial government that denies the divine,” the bishops said.
Quebec has argued the notwithstanding clause disqualifies courts from weighing in on matters deemed political debates. Isabelle Brunet, a lawyer for the Quebec government, told the justices: “It is not up to a court to answer a question that doesn’t concern the courts.”
Quebec received support from the attorneys general of Alberta, Ontario, and Saskatchewan, who maintain the courts should not interfere once the notwithstanding clause is invoked.
Alberta and Ontario take a contrary position, arguing there is nothing in the notwithstanding clause that precludes judicial scrutiny of legislation.
Guy J. Pratte, a lawyer for the attorney general of Canada, said Section 33 gives legislatures the power to override Charter rights but does not nullify the rights altogether or prevent judges from issuing an opinion if freedoms are violated.
‘Imposing an anti-religious, non-neutral ideology’
The following excerpts are from the factum submitted to the Supreme Court of Canada by the Canadian bishops:
- “The purpose and effect of the act is unilaterally to amend Canada’s federal constitution by imposing an anti-religious, non-neutral ideology, which goes beyond Québec’s jurisdiction.”
- “When a province makes itself laïc, it is adopting a non-neutral stance on religion. The provinces do not have that power.”
- “Québec is attempting to impose an atheistic posture on religious believers.”
- “Our constitution is founded on a political theory that sees fundamental rights and freedoms as God-given. To adopt an expressly anti-religious viewpoint, as the act purports to do, is an amendment of our existing federal constitution.”
- “In the place of a genuinely neutral, pluralist, and pro-religious approach, the act substitutes an anti-religious constitutional settlement where symbols of religion worn by individuals are not permitted.”
- “Just as religious symbols manifest an underlying personal faith, the prohibition of religious symbols manifests an outlook … that denies the divine.”
This story was first published by The B.C. Catholic and is reprinted here with permission.
Quebec secularism law is ‘anti-religious ideology,’ bishops tell Canada Supreme Court #Catholic
Canada’s bishops told the Supreme Court of Canada that Quebec’s secularism legislation Bill 21 “denies the divine” going well beyond provincial jurisdiction by imposing an anti-religious ideology on the province.
The bishops were among more than 50 intervenors presenting arguments at a landmark Supreme Court of Canada hearing into the constitutionality of Quebec’s 2019 secularism law. The hearing, one of the longest in the court’s history, ran from March 23–26. The court reserved its decision, with a ruling expected later this year.
The secularism law, which lower courts have twice upheld, prohibits certain public employees — such as teachers and police officers — from wearing religious symbols while at work.
Toronto lawyer Phil Horgan, president and general counsel of the Catholic Civil Rights League (CCRL), argued on behalf of the Canadian Conference of Catholic Bishops (CCCB), summarizing a factum that argued the “purpose and effect” of Quebec’s legislation is to “amend Canada’s federal constitution by imposing an anti-religious, non-neutral ideology, which goes beyond Québec’s jurisdiction.”
Such a “drastic” change can only be made by the federal government using its authority over criminal law or its constitutional “peace, order, and good government” powers, according to the bishops’ argument.
Quebec preemptively invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms when it drafted Bill 21 to shield it from judicial review.
Federal and provincial governments can invoke the notwithstanding clause of the Constitution to temporarily prevent courts from invalidating legislation as unconstitutional.
The timing and impact of the use of Charter Section 33 became a significant issue during the four days of hearings and will likely be central in the court’s analysis, Horgan told The Catholic Register.
The appellants challenging Bill 21 include individual teachers directly affected by it as well as advocacy groups including the National Council of Canadian Muslims (NCCM), the Canadian Civil Liberties Association (CCLA), and the Legal Committee of the Coalition Inclusion Québec. They argue Bill 21 is “ultra vires,” beyond the powers of provincial jurisdiction.
In a five-minute oral argument, Horgan told the seven justices that “Canada’s existing federal constitution is pluralist and pro-religion.” Although “the doctrine of state neutrality is well established, Canada has never adopted laicity or an absolutist separation of church and state,” he said.
Justice Malcolm Rowe questioned Horgan on the point, asking: “Other than the reference to the supremacy of God in the preamble to the Charter, would you direct me to the provision in the Constitution which is pro-religion?”
Horgan cited Section 93 of the Constitution Act, 1867, which protects denominational school rights and privileges, and noted federal charity law recognizes religion as a public good.
Horgan said he wasn’t concerned by the pushback, noting judges often ask questions “not so much to get the answers from counsel but to help … persuade other members of the bench on some of the merits of the argument.”
In its factum, the CCCB said Bill 21 “turns the expression of religious belief, through the wearing of symbols, into something to be punished because such expression now conflicts with the dominant philosophical posture of laïcité.”
Just as religious symbols are an illustration of underlying personal faith, “the prohibition of religious symbols manifests an outlook from the provincial government that denies the divine,” the bishops said.
Quebec has argued the notwithstanding clause disqualifies courts from weighing in on matters deemed political debates. Isabelle Brunet, a lawyer for the Quebec government, told the justices: “It is not up to a court to answer a question that doesn’t concern the courts.”
Quebec received support from the attorneys general of Alberta, Ontario, and Saskatchewan, who maintain the courts should not interfere once the notwithstanding clause is invoked.
Alberta and Ontario take a contrary position, arguing there is nothing in the notwithstanding clause that precludes judicial scrutiny of legislation.
Guy J. Pratte, a lawyer for the attorney general of Canada, said Section 33 gives legislatures the power to override Charter rights but does not nullify the rights altogether or prevent judges from issuing an opinion if freedoms are violated.
‘Imposing an anti-religious, non-neutral ideology’
The following excerpts are from the factum submitted to the Supreme Court of Canada by the Canadian bishops:
- “The purpose and effect of the act is unilaterally to amend Canada’s federal constitution by imposing an anti-religious, non-neutral ideology, which goes beyond Québec’s jurisdiction.”
- “When a province makes itself laïc, it is adopting a non-neutral stance on religion. The provinces do not have that power.”
- “Québec is attempting to impose an atheistic posture on religious believers.”
- “Our constitution is founded on a political theory that sees fundamental rights and freedoms as God-given. To adopt an expressly anti-religious viewpoint, as the act purports to do, is an amendment of our existing federal constitution.”
- “In the place of a genuinely neutral, pluralist, and pro-religious approach, the act substitutes an anti-religious constitutional settlement where symbols of religion worn by individuals are not permitted.”
- “Just as religious symbols manifest an underlying personal faith, the prohibition of religious symbols manifests an outlook … that denies the divine.”
This story was first published by The B.C. Catholic and is reprinted here with permission.
