In a brief five minutes, Phil Horgan summed up Canada's bishops feelings on Quebec's Bill 21: it spurns God and imposes an anti-religious ideology in the province, and that goes well beyond Quebec's jurisdiction. 

During the landmark Supreme Court of Canada hearing for Bill 21 from March 23-26, Horgan interceded on behalf of the Canadian Conference of Catholic Bishops (CCCB). The Toronto-based lawyer and president and general counsel of the Catholic Civil Rights League (CCRL) was one of 51 intervenors who delivered arguments alongside the main appellants and respondents.  

It was nearly seven years ago, on June 16, 2019, the National Assembly of Quebec passed Bill 21 in an effort to bolster state secularism. The law, twice upheld by lower courts, prohibits certain public employees — like teachers and police officers — from wearing religious symbols while at work. 

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Quebec employed preemptive use of Section 33 of the Canadian Charter of Rights and Freedoms to shield Bill 21 from judicial review. A significant crux of this hearing centred on the timing and impact of using the notwithstanding clause.

“How this plays out is likely going to be more of an analysis of how Section 33, the notwithstanding clause of the Charter, will be observed by the Supreme Court since that was the great majority of the submissions,” surmised Horgan.

Two appellant groups — comprising counsel for Muslim teacher Ichrak Nourel Hak, the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCCA), as well as representatives for teachers Andréa Lauzon, Hakima Dadouche and Bouchera Chelbi, and the Legal Committee of the Coalition Inclusion Québec — presented arguments about divisions of power. Both declared Bill 21 is “ultra vires,” beyond the powers of provincial jurisdiction, as matters of religion and public morality are the concerns of the federal government.

Horgan’s roughly five-minute oral argument to the court on behalf of the CCCB and his submitted factum echoed the concerns advanced by the aforementioned parties. He wrote that “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. Such a drastic amendment can only be accomplished by the federal government through the criminal law or (Peace, Order and Good Government) powers.”

In the presence of the seven justices, Horgan said “Canada’s existing federal constitution is pluralist and pro-religion” and that “while the doctrine of state neutrality is well-established, Canada has never adopted laicity or an absolutist separation of church and state.”

Justice Malcolm Rowe asked Horgan, “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 responded by citing Section 93 of the Constitution Act, 1867, which protects denominational school rights and privileges, and how religion is recognized as a public good in federal charity law.

Horgan shared with The Catholic Register his thoughts on why Rowe made his query.

“I find that judges often ask questions, not so much to get the answers from counsel, but to help the judge persuade other members of the bench on some of the merits of the argument,” said Horgan. “I wasn't terribly worried about the question or the answer. It wasn't something that I was unprepared for. So that was fine.”

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A striking passage from the CCCB factum suggested that Bill 21 is a spurning of God.

“This amendment 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,” stated the bishops. “Just as religious symbols manifest an underlying personal faith, the prohibition of religious symbols manifests an outlook from the provincial government that denies the Divine.”

Horgan said he is “not sure it'll be the winning argument or have any impact, quite frankly, but I think it's a contribution that was worth making.”

Quebec defended its secularism law by declaring the notwithstanding clause disqualifies judges from weighing in on matters deemed political debates.

Isabelle Brunet, a lawyer for the Quebec government, pronounced that “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 in suggesting there should be no judicial opinions or declarations if Section 33 is validly invoked.

“Ontario's position is that once Section 33 has been invoked, courts should not provide opinions on whether the law would have been constitutional if that invocation had not been made,” said Doug Downey, Ontario’s attorney general, during the March 25 hearing.

Attorney General of Manitoba Deborah Carlson countered by stating, “there is nothing in Section 33 that precludes post-enactment judicial scrutiny.”

Trevor Bant, litigation counsel for the B.C. Ministry of Attorney General, argued similarly to Carlson.

“There is no privative-clause-type language in the text of Section 33,” he said. “There is nothing providing that certain matters or questions shall not be reviewed in any court.”

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Guy J. Pratte, a lawyer for the attorney general of Canada, said the power Section 33 gives legislatures to override Charter rights does not nullify these rights altogether or stop judges from issuing an opinion when these freedoms are violated.

The Supreme Court of Canada’s decision on Bill 21 is currently on reserve.