National lawyers’ association to intervene in Bill 21 constitutional challenge

Legislation “undermines a foundational pillar of our free and democratic society: the right to openly and publicly identify as religious”

FOR IMMEDIATE RELEASE

August 3, 2021

Montreal, QC – Chief Justice Manon Savard of the Court of Appeal of Quebec has granted Christian Legal Fellowship (CLF) intervener status in the litigation challenging Quebec’s controversial Bill 21.

Christian Legal Fellowship is Canada’s national association of Christian lawyers, law professors, jurists, and law students, and has decried Bill 21’s violation of religious equality rights since the legislation was introduced in 2019.

Bill 21 seeks to promote the “laïcité” (or secularism) of the state by prohibiting religious symbols for public sector workers – including lawyers who work for, or are under contract with, the provincial government. CLF has expressed concern that it effectively bans openly-religious lawyers from public service. CLF’s Executive Director and General Counsel, Derek Ross, explains:

“Bill 21 forces Quebecers to suppress their religious identity as a pre-condition for public service. It views their religious identity as inherently negative, so much so that it must be erased from the public eye. The Quebec Superior Court rightly described this as cruel and dehumanizing, and recognized that these prohibitions send a harmful message: that people of faith are not welcome to participate as equals in the public square, unless they hide the fact that they are religious. This is not religious ‘neutrality’ at all, but anti-religious hostility. Bill 21 therefore undermines a foundational pillar of our free and democratic society: the right to openly and publicly identify as religious.”

In enacting Bill 21, the Quebec government invoked the Charter’s notwithstanding clause (s. 33), which allows a law to operate “notwithstanding” the fact that it violates certain Charter rights, including religious freedom (s. 2) and the right to equality without discrimination on the basis of religion (s. 15).

Justice Blanchard of the Quebec Superior Court recently concluded that the notwithstanding clause shielded most of Bill 21’s provisions from Charter scrutiny, and largely upheld the law on that basis (with some exceptions). However, Justice Blanchard expressed deep reservations about the legislation. He noted that forcing individuals to choose between their religious beliefs and their work was a “cruel consequence which dehumanizes the individuals concerned”, and that prohibiting them from wearing a religious symbol amounts to “denying them one of the very foundations of their being” (paras 69 and 1098, unofficial translation).

Justice Blanchard’s decision has been appealed to the Quebec Court of Appeal, where CLF has now been welcomed to participate as a friend of the court. CLF intends to argue that the notwithstanding clause is limited by other provisions of the Charter, and therefore does not automatically protect every limitation on religious freedom sought by the state.

Montreal lawyer and past CLF President, Robert Reynolds, who is representing CLF in the Bill 21 litigation, explains:

“The Charter was enacted to restrict – not extend – the government’s power over human rights. Religious freedom – and the state’s corollary duty to respect it – was constitutionally recognized in Canada long before the Charter. If certain core elements of religious freedom could not be overridden prior to the Charter, they certainly cannot be overridden now, because of the Charter. This is because, as section 31 of the Charter makes clear, nothing in the Charter – including the notwithstanding clause – ‘extends the legislative powers’ of the National Assembly or any other government body. Canadian courts recognized prior to the Charter that all people have, as their “birthright”, an inherent right to freedom of religion – this is something which the notwithstanding clause cannot suddenly take away.”

CLF’s arguments:

CLF has been granted leave to make arguments that certain aspects of religious freedom have always been non-derogable, including freedom from compelled religious observance. And further, that those freedoms cannot be overruled by the notwithstanding clause, since section 31 makes clear that nothing in the “Charter extends the legislative powers of any body or authority.”

As both a legal and religious association, CLF is uniquely positioned to address these issues, and looks forward to contributing to this important case at the Court of Appeal of Quebec.

CLF to intervene in Bill 21 constitutional challenge

National lawyers’ association to intervene in Bill 21 constitutional challenge

Legislation “undermines a foundational pillar of our free and democratic society: the right to openly and publicly identify as religious”

CLF’s arguments:

Further reading:

BLOG ARCHIVE