Quebec Court of Appeal releases Bill 21 decision

Montreal, QC – Today, the Quebec Court of Appeal released its decision in the constitutional challenge to Quebec’s Bill 21. The court ruled that the law is constitutional, largely due to the Bill’s invocation of the notwithstanding clause. As such, Bill 21 will continue to operate in Quebec.

The Christian Legal Fellowship / Alliance des chrétiens en droit (CLF), an intervener in the case, expressed disappointment about the outcome. Derek Ross, CLF’s Executive Director and General Counsel, explains CLF’s concerns:

“Bill 21 forces people of faith to suppress their religious identity as a precondition for public service. The Quebec Superior Court rightly described this as cruel and dehumanizing. These restrictions 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 undermines a foundational pillar of our free and democratic society: the right to openly and publicly identify as religious.”

Bill 21 seeks to promote the “laïcité” (or secularism) of the state by prohibiting certain professionals – including lawyers who work for, or are under contract with, the provincial government in the public sector – from wearing or displaying religious symbols. Montreal lawyer and past CLF President Robert Reynolds, who made oral submissions to the Court of Appeal on behalf of CLF, explains:

“This is contrary to the duty of state neutrality, which seeks not to exclude but to include all religious and non-religious identities in the public square, with neither hindrance nor preference. As the Supreme Court of Canada has emphasized, this duty of neutrality requires the state to encourage everyone to participate freely in public life regardless of their beliefs, and to respect religious differences, not extinguish them. Bill 21 has the opposite effect.”

CLF’s involvement in the case

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).

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

However, CLF argued that certain constitutional protections cannot be suspended by the Charter’s notwithstanding clause (section 33), because the scope of that section is itself limited in its own text and other constitutional provisions, such as section 31 of the Charter. Section 31 states that “nothing in this Charter extends the legislative powers of any body or authority.” CLF argued that section 31 clarifies that no government can invoke the Charter to enact legislation that it lacked authority to pass before the Charter was introduced, and it preserves the division of powers between federal and provincial governments. As Reynolds 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 recognized in Canada before the Charter. If certain core elements of religious freedom could not be overridden prior to the Charter, we argued that they cannot be overridden now because of the Charter.”

CLF argued that certain basic human rights protections have been recognized before the Charter, including freedom from a state-imposed religious (or irreligious) ideology, and mandated observance of same. CLF’s submissions focused on how these principles are preserved by section 31 and prevent a government from imposing sectarian observances as a condition of participation in public service.

However, the Court ultimately declined to accept this argument. Robert Reynolds comments:

“The Court was concerned about section 31 being used to ‘disregard’ section 33 of the Charter, but, with respect, that was not our submission. Rather, section 31 helps to define the scope of section 33’s application, which, as its text makes clear, is limited to certain provisions of the Charter. We argued that the Charter neither supplanted nor constricted all pre-existing protections related to religious expression and equality, and we sought to explain why such protections were still relevant in this context.”

To learn more about CLF’s advocacy and engagement on Bill 21, please visit https://www.christianlegalfellowship.org/bill21. CLF’s factum can be read below.

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For additional information, please contact:

Vivian Clemence
Bilingual Legal Counsel, Christian Legal Fellowship
vclemence@christianlegalfellowship.org

Read CLF/ACD's factum below:

Official version:

Unofficial English translation:

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