Judgment on Quebec secularism law may land by end of November, Supreme Court chief justice says

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Chief Justice of Canada Richard Wagner holds his annual press conference on Tuesday. Sean Kilpatrick/The Canadian Press

The Supreme Court of Canada aims to issue its landmark ruling on Quebec’s Bill 21 and the Charter’s notwithstanding clause by the end of November, Chief Justice Richard Wagner said Tuesday at his annual news conference.

The court generally never provides an indication of when a ruling might be delivered, save for a notice of several days ahead of each judgment, but with a provincial election in Quebec set for Oct. 5, reporters on Tuesday twice asked the Chief Justice about Bill 21 timing.

The Bill 21 case is hotly political . The court heard the case over four days in late March, one of the longest hearings in its history. Quebec’s 2019 law prohibits public sector workers, including teachers, from wearing religious symbols such as a hijab or cross on the job.

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The provincial government shielded the law from court challenges with the notwithstanding clause in the Charter of Rights and Freedoms. The clause allows politicians to override many parts of the Charter. The Quebec courts twice upheld Bill 21 because of the notwithstanding clause.

On Tuesday, Chief Justice Wagner noted the retirement of Justice Sheilah Martin as a factor in the Bill 21 judgment. Justice Martin’s last day was May 30 and, under the Supreme Court Act, retiring judges get six months to participate in pending judgments.

That means Justice Martin can officially sign a Bill 21 judgment through to the end of November.

“I would like to ensure that she is part of the decision,” Chief Justice Wagner told reporters in translated remarks from French. “That’s a deadline we’re taking into account.”

Many big decisions almost always take longer than six months from the hearing to a judgment.

A similar situation, with a hotly political case and a retiring judge, unfolded in 2017 and 2018, Vancouver lawyer John Trueman said in a social media post last week. In late November, 2017, the Supreme Court heard a case on freedom of religion and equality rights at Trinity Western University, two weeks before the mid-December retirement of Chief Justice Beverley McLachlin.

The court issued its judgment June 16, 2018, the last day former chief justice McLachlin was allowed to be part of the important ruling.

That example could jibe with Bill 21. Trinity Western was a complicated case delivered on a short time frame. There were in fact four judgments: the majority, two concurring reasons, and a dissent. On Bill 21, legal experts question whether the court can strive towards unanimity or if, like Trinity Western, it will be divided.

On Tuesday, Chief Justice Wagner broached a range of issues in his annual press conference. It is held in June at the end of the court’s annual fall-winter-spring calendar, a tradition the Chief Justice started after he was named to the top job in late 2017, so Canadians can better understand the workings of the Supreme Court.

Reporters asked Chief Justice Wagner about his decision not to recuse himself in the Emergencies Act case.

In January, the Federal Court of Appeal ruled the Trudeau government’s February, 2022, decision to invoke the Emergencies Act to end weeks-long trucker protests in Ottawa and elsewhere was not legally justified.

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In an April, 2022, interview with Montreal newspaper Le Devoir, Chief Justice Wagner likened the Ottawa protests to the initial stages of anarchy – “c’est un petit debut d’anarchie,” he was quoted as saying – adding he found that worrying.

As part of an appeal application to have the Emergencies Act case heard at the Supreme Court, one small group, Canadian Frontline Nurses, in a legal filing questioned whether it would be “inappropriate” for Chief Justice Wagner to take part in the court’s deliberations.

On April 29, Supreme Court Registrar Chantal Carbonneau sent a letter to lawyers in the case noting Chief Justice Wagner had considered the issue and “concluded that there is no actual or reasonable apprehension of bias that would require his recusal under the applicable legal test.”

On Tuesday, Chief Justice Wagner said he could not comment on the recusal situation because the case is pending.

Among other issues, Chief Justice Wagner called out “attempts to undermine public confidence in the justice system” and “judges and courts sometimes portrayed as partisan actors or described as obstacles to the will of the people.”

He did not name anyone specifically but it could have been a reference to Ontario Premier Doug Ford. An Ontario Superior Court judge in May ruled that the Region of Waterloo could not clear a homeless encampment in Kitchener.

Mr. Ford said it was the “most ridiculous rulin…