Lawyers for François Legault’s government are calling on the Supreme Court of Canada to respect the parliamentary sovereignty of the National Assembly and to prove wrong those who, since Monday, have been trying to convince judges that the Law on State Secularism – also called “Bill 21” – should be invalidated.
On the second day of hearings before the country’s highest court, which began Monday, the Attorney General of Quebec criticized the appellants for trying to bypass
the notwithstanding provision of the Constitution, enshrined in section 33 of the Canadian Charter of Rights and Freedoms.
First to speak, Me Isabelle Brunet argued in particular that the opposing parties were seeking to transfer certain rights from one article to another in order to remove them from the scope of application of the said provision, also called notwithstanding clause
or parliamentary sovereignty clause
.
What the appellants seek is to find a way to circumvent “33” as if it did not exist, then invite the Court to enter the political arena
summarized the lawyer. Gold, it is not the role of the Court to decide a political question which is not justiciable
she recalled.
The notwithstanding provision gives Parliaments that invoke it the power to adopt a law ignoring, for five years, the fundamental rights set out in articles 2 and 7 to 15 of the Charter. This is what the National Assembly has done six times since 2018, including twice in the case of Law 21, in 2019 and in 2024.
The appellants contest, among other things, the fact that the notwithstanding clause
was used preventively, before Bill 21 was examined by the courts.
Thus, part of the debates which have taken place since Monday aim to determine whether the Court will be able to rule on the validity of Law 21 on the merits, even if it concludes that the exemption provision could indeed be invoked upstream.
Me Brunet, in his presentation, also replied to Me Frédéric Bérard, the lawyer for the Autonomous Federation of Education (FAE), who, on Monday, had invited the Court to prevent the advent ofa mini-Trump
Canadian by prohibiting the preventive use of notwithstanding clause
.
We must trust our democracy, she pleaded. The guardians of the Constitution also belong to elected officials and the electorate.
The constitutionality of Bill 21 will be decided by seven judges of the Supreme Court. (Archive photo)
Photo: Radio-Canada / Pascal Raiche-Nogue
The hearings, which began on Monday with the presentation of the appellants, will last four days in total and will end on Thursday, a particularly long duration for a particularly popular case.
The outcome of Bill 21 in the Supreme Court is the result of half a dozen appeals filed by the English Montreal School Board, the World Sikh Organization of Canada, the National Council of Canadian Muslims, the Canadian Civil Liberties Association (CCLA) and the FAEnotably.
In total, 71 briefs have been filed since the first request for authorization was presented to the court in April 2024.
In addition to the appellants and respondents, 51 participants were invited to put forward their arguments, something unheard of since the Reference relating to the secession of Quebec of 1998.
The case, ultimately, will be decided by seven magistrates rather than nine. Judge Mahmud Jamal, who presided over theACLC when it decided to challenge Law 21 before the courts, recused itself in July 2024. The Court then decided not to sit in even numbers. Hence the absence of Alberta judge Mary T. Moreau.
Carney prone the institutional generosity
The Attorney General of Canada, for his part, will argue on Wednesday that the use of the notwithstanding provision of the Constitution should be further regulated.
The brief he submitted makes no comment on the content of Bill 21. Prime Minister Mark Carney, however, called on the public authorities to demonstrate institutional generosity
Tuesday morning, in a speech delivered on the sidelines of the National Prayer Breakfast in Ottawa.
Christ, in the Sermon on the Mount, exhorts us to take care that when we give, the left hand does not know what the right hand is doing
he stressed.
Generosity, at its noblest, does not keep accounts. May our generosity be discreet and without witnesses. And that it is both personal and institutional.
Mark Carney delivered remarks Tuesday on the sidelines of the National Prayer Breakfast, an event held each year in Ottawa in the presence of political and religious leaders.
Photo: The Canadian Press / Sean Kilpatrick
Questioned on the subject by the parliamentary press in Ottawa, the Canadian Minister of Industry, Mélanie Joly, estimated that Mr. Carney – who has his own beliefs
she recalled, referring to her boss’s Catholic faith – had made these comments on a personal basis
mardi.
The statement nevertheless caused shock at the headquarters of the Supreme Court, as the respondents’ lawyers were preparing to take the floor to defend Bill 21.
I think the Canadian Prime Minister should show restraint under the separation of powers
declared in particular the former MP and lawyer Christiane Pelchat, who represents the organization For the Rights of Women of Quebec in this case.
This is precisely what we are calling for, the separation of religion and the State.
she continued. Mr. Carney cannot say: “I am not here as Prime Minister, but I am here as a believer.” He cannot make that distinction. He is first and foremost the Prime Minister of Canada.
PSPP have no illusions about the future
The Prime Minister’s remarks on the necessary institutional generosity
of Canada also reacted Tuesday in the National Assembly.
What follows from Mark Carney’s declaration, difficult to understand, is above all that there are two universes, two visions of society, between that of Canada and Quebec
commented in particular the leader of the Parti Québécois (PQ), Paul St-Pierre Plamondon.
What will happen is that the federal Parliament and the federal courts will impose their model on us, through an ever broader interpretation of the right to equality and the right to religion, and through […] a contempt, which has always been felt, towards the difference of Quebec, by treating it as fascism, racism
he predicted.
The right to religion, [au Canada]it is an ultragenerous interpretation which leaves no room for secularism, as if the right to religion took precedence over all considerations of social peace and collective life. Quebecers think the opposite.
In the name of the independence of the judiciary, Mr. St-Pierre Plamondon did not want to ask the Supreme Court to render its judgment before the next general elections in Quebec, which will take place no later than October 5.
However, he stressed that Quebecers would have interest
to be properly informed
on the subject when voting
.
Fraser assures that he does not want to resurrect the power of disavowal
Asked in turn about the latest developments in the Bill 21 file, the federal Minister of Justice, Sean Fraser, limited himself to saying that he could not comment on the subject since the case was currently in the hands of the courts.
However, he assured that he had no intention of using the power of disavowal
of the federal government to annul the said law.
Yet this is what some members of the Liberal Party of Canada (PLC) advocate.
According to the Toronto Starthese activists will submit to the next congress of PLCwhich will take place April 9-11 in Montreal, a proposal calling on the Carney government to overturn all provincial laws passed under the notwithstanding clause without first being reviewed by a court.
Ce power of disavowal
comes from the Constitutional Act of 1867. It theoretically allows the federal government to repeal provincial laws. In practice, however, this power has fallen into disuse. It has not been used since 1943.