Bill 21 Appeal: CLF Intervenes in Support of Religious Equality
FOR IMMEDIATE RELEASE
[aussi disponible en français]
4 November 2022
Montréal, QC – Beginning Monday, November 7, the Quebec Court of Appeal will hear the constitutional challenge to Quebec’s Bill 21. Christian Legal Fellowship (CLF), Canada’s national association of Christian legal professionals, has been granted leave to intervene in the litigation.
Bill 21 seeks to promote the “laïcité” (or secularism) of the state by prohibiting religious symbols for a number of professionals in the public sector – including lawyers who work for, or are under contract with, the provincial government.
Since Bill 21 was introduced, CLF has decried its exclusion of openly religious lawyers, and others, from public service. Indeed, one of the plaintiffs in the Bill 21 litigation is a practicing Muslim who is unable to practice as a criminal prosecutor under the law (see Hak c Procureur général du Québec, 2021 QCCS 1466 at para 64).
Derek Ross, CLF’s Executive Director and General Counsel, explains:
““Bill 21 forces people of faith to suppress their religious identity as a pre-condition for public service. 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 discrimination. Bill 21 therefore undermines a foundational pillar of our free and democratic society: the right to openly and publicly identify as religious.””
CLF’s arguments as a friend of the court
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).
However, CLF’s intervention explains that certain aspects of religious freedom and equality cannot be overruled by the Charter’s notwithstanding clause (section 33), because it is itself limited by other constitutional provisions, such as section 31 of the Charter. Montreal lawyer and past CLF President Robert Reynolds, who will be making oral submissions to the Court on behalf of CLF, 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.””
Section 31 of the Charter states that “nothing in this Charter extends the legislative powers of any body or authority.” CLF’s factum (see below) explains that section 31 is relevant in at least two ways.
1. First, it clarifies that no government can invoke the Charter to enact legislation that it lacked authority to pass before the Charter was introduced.
2. Second, it clarifies that the division of powers between federal and provincial governments, granted by sections 91 and 92 of the Constitution Act, 1867, remain the same, and cannot be overridden by the notwithstanding clause.
On the first point, CLF argues that elements of certain basic protections have always been non-derogable, including freedom from coerced religious (or irreligious) observance and the right of all faith communities to exercise their religion on equal terms with others. These principles are preserved by section 31 and prevent a government from imposing sectarian observances as a condition of participation in public service.
On the second point, CLF argues that Bill 21 breaches the constitutional division of powers because it deals directly with religious observance and public morality; this falls within federal—not provincial—jurisdiction. In addition, Bill 21 infringes the freedom of certain religious minorities in Quebec, which is a matter of national concern, and not a purely local or private matter. As CLF concludes in its factum:
“Bill 21 does not incidentally interfere with religion in pursuit of some other legitimate objective. It regulates religion for the sole purpose of erasing it, at least in certain public places. A legislative objective that can only be achieved by denying citizens their fundamental religious and equality rights is not a legitimate objective. Free religious expression was recognized as an integral component of Canadian society long before the Charter.
Governments may sometimes be justified in regulating certain acts that have a religious dimension through competent legislation. But to categorically exclude religious identities from public institutions—just because they are visibly religious—is another matter entirely. It is doubtful that a government could ever do so, but CLF argues that a province cannot do so unilaterally—neither before nor after the Charter.”
About the decision under appeal: Hak c Procureur général du Québec, 2021 QCCS 1466
Last year, Justice Blanchard of the Quebec Superior Court concluded that the notwithstanding clause shielded much of Bill 21 from Charter scrutiny, and largely upheld the law on that basis (with some exceptions). However, he expressed some deep reservations about the legislation. For example, 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).
Click here for CLF’s analysis of Justice Blanchard’s Bill 21 ruling, which is being appealed before Quebec’s Court of Appeal, with hearings starting on November 7.
To learn more about CLF’s advocacy and public engagement on Bill 21, please visit https://www.christianlegalfellowship.org/bill21.
-30-
For additional information, please contact:
Vivian Clemence
Associate Legal Counsel, Christian Legal Fellowship
vclemence@christianlegalfellowship.org
Read CLF/ACD's factum below:
Official version:
Unofficial English translation:
(Click the “[ ]” icon to enable full screen mode)