Will the Supreme Court overturn Bill 21?

0:00Every idea starts with a problem. Warby Parker's was simple. Glasses are too expensive. So, they set out to change that. By designing glasses in-house and selling directly to customers, they're able to offer prescription eyewear that's expertly crafted and unexpectedly affordable. Warby Parker glasses are made from premium materials, like impact-resistant polycarbonate and custom acetate. And they start at just $95, including prescription lenses. Get glasses made from the good stuff. Stop by Warby Parker store near you. 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

1:01or 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

2:02that 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

3:05and 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

4:07an 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.

5:11But 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

6:13of 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

7:15elsewhere 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,

8:19there 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

9:21than, 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,

10:21it'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,

11:24and 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.

12:24Thank 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. Who's your favorite writer of all time? And if you could sit down and have dinner with them, what would you ask? It might be tough to get a dinner date, but I can try to give you the next best thing. I'm Matea Roach. On my podcast bookends, I sit down for honest conversations with some of today's literary stars. People like Zadie Smith, Ken Follett, RF Kwong, and Louise Penny. Whether you love books or just want a new perspective on your everyday, check out bookends with Matea Roach, wherever you get your podcasts. 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,

13:24it 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.

14:25And 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.

15:26And 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

16:27for 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,

17:28if 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,

18:30but 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.

19:31And 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. For more CBC podcasts, go to cbc.ca slash podcasts.