Quebec wants to ban prayer in public spaces. Is it legal?

Quebec’s announced move to ban prayer in public spaces is being condemned by civil liberties advocates, while legal experts say it could further test the limits of the notwithstanding clause in Canada’s Charter of Rights and Freedoms.

Secularism Minister Jean-François Roberge said Thursday that he will table legislation this fall to outlaw public prayer, calling “the rise of street prayers” in Montreal and other parts of Quebec “a serious and sensitive issue.”

Roberge did not say if the government would invoke the notwithstanding clause, which would allow the bill to override certain sections of the Canadian Charter of Rights and Freedoms. Last year, Premier François Legault said he was considering that possibility while calling out prayers in the streets.

“The government probably feels confident that they would be able to shield this law with the notwithstanding clause,” said Joel Bakan, a constitutional law professor at the University of British Columbia.

He added that “it’s unlikely, though not impossible, that the government could persuade a court that it is a reasonable limit” on Section 2 of the Charter, which affords Canadians the freedom of religion and expression.

The notwithstanding clause allows a province to override Section 2 and certain other fundamental rights outlined in the Charter, shielding legislation from being struck down by the courts as unconstitutional under those sections.

The clause covers legislation for five years, after which time a government must renew the bill for another five-year period or allow it to expire, or “sunset.”

Quebec used the notwithstanding clause in 2019 to pass Bill 21, which prohibits certain public officials from wearing religious symbols, and renewed the law last year. The Supreme Court of Canada is currently considering a constitutional challenge of the law that argues it violates other sections of the Charter.

In 2023, Quebec banned prayer rooms and other religious practices from public schools, a move denounced by Muslim and civil liberties groups.

“(The province is) escalating ways to almost normalize this idea of restricting religious rights in a kind of scaffolded way,” said Harini Sivalingam, director of the equity program at the Canadian Civil Liberties Association, which has helped lead the challenge to Bill 21.

“From a civil society perspective, if you look at the previous bills, they do have a disproportionate impact on certain religious communities, such as Muslims, Sikhs, Jewish communities…. So we feel like this religious prayer ban will likely also disproportionately impact some religious minority groups.”

Roberge’s announcement comes amid simmering tension in Quebec over Muslim prayers taking place as part of pro-Palestinian demonstrations, including in front of the Notre-Dame Basilica of Montreal.

“Seeing people on their knees in the streets, praying, I think we have to ask ourselves the question. I don’t think it’s something we should see,” Legault said last year.

In a statement Thursday, the Canadian Muslim Forum said it was deeply concerned by the news.

“A blanket ban would stigmatize communities, fuel exclusion, and undermine Quebec’s social cohesion,” the group said.

Sivalingam noted that, unless the proposed legislation includes specific carve-outs, a broad ban on public prayer could include anything from silent praying to yoga meditations.

Bakan said the notwithstanding clause has been used by provinces as a “blank cheque” since 1988, when the Supreme Court of Canada set the legal precedent for its use in the case known as Ford v. Quebec.

Since then, constitutional experts have called for limits on Section 33 and its usage, particularly amid a wave of recent cases.

During the recent federal election, Conservative Leader Pierre Poilievre said he would use the notwithstanding clause if necessary to bring back consecutive mandatory life sentences for serial murderers and drug traffickers.

Quebec used the clause to pass its French language law in 2022, while Ontario invoked it later that same year to impose a contract on education workers threatening to strike.

In 2023, Saskatchewan used the notwithstanding clause to pass legislation that requires parental consent for minors under 16 wishing to affirm their gender identity at school, after a court blocked the policy.

Alberta Premier Danielle Smith has floated using the clause for a transgender health restrictions bill passed last year. The law was blocked by a court in June but Smith has said her government will appeal, calling using the clause “a last resort.”

“When you take together the instances where governments have invoked the notwithstanding clause, either threatened or actually used it in the last little while, it really covers a pretty full range of our most fundamental rights and freedoms under the Charter,” Bakan said.

He noted the challenge against Quebec’s Bill 21 could see the Supreme Court of Canada override the Ford precedent and set new limits on using the notwithstanding clause to override certain fundamental freedoms.

“Personally, I am hoping that the Supreme Court takes a second look at Section 33 and sort of crafts some principles that at least don’t allow for this kind of arbitrary, politically driven approach to it,” he said.

Earlier this month, the Saskatchewan Court of Appeal allowed legal challenges to the school pronoun law to continue despite the use of the notwithstanding clause, ruling that courts still have a duty to inform the public on whether legislation violates constitutional rights.

Sivalingam says the CCLA is hopeful the Supreme Court of Canada can reconcile the Saskatchewan decision with the arguments in the Quebec case.

“The Supreme Court is going to have to decide what it feels is the role of the courts when the notwithstanding clause has been invoked by governments to railroad fundamental rights and freedoms of all of us in Canada,” she said.

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