BCHA and Canadian Secular Alliance submit their brief on Quebec’s Bill 21 to the Supreme Court of Canada

The BCHA and CSA submitted their ten-page argument against Quebec’s Bill 21 in September. (CFIC came out against Bill 21 back in 2019; see here and here and here and here for previous Critical Links articles).

There are fundamentally two arguments in the submission:

1. The Supreme Court of Canada has stated and reiterated several times that Canada is a secular nation, with a duty of neutrality in matters of religion. This duty is baked into the Charter.
2. What constitutes a religious symbol is a matter of personal perspective, and the state is incapable, even in principle, of making such a determination. Therefore, any law that requires the state to distinguish between religious and non-religious symbols is legally incoherent.

Let’s get into a bit more detail on each of these points.

Canada is a secular nation beyond freedom of religion

The duty of state neutrality in matters of religion is an independent constitutional principle. It doesn’t follow from freedom of religion; rather the freedom of religion clause of the Charter is an expression of the state’s duty of neutrality. In fact, it is a democratic imperative, and is thus an inherent part of the Charter. There have been other unwritten principles read into the Charter, and it is appropriate to make this understanding, present and implicit since the Charter was ratified, explicit. State neutrality, as a duty, cannot be subsumed within a Charter right. Therefore the state must remain secular – neutral in matters of religion – even if the Charter provision guaranteeing freedom of religion is nullified by invoking the notwithstanding clause.

The state is incapable of determining what is a religious symbol

There is ample jurisprudence stating that “religious freedom is premised on the personal volition of individual believers” and variations on that theme. Therefore the practice of religion, and the meaning of its symbols, is individual and subjective. Some laws might have the effect of restricting religious freedom (e.g., wearing hard hats on a construction site), but that might be an acceptable cost for some social good (health and safety). But legislation intentionally restricting religion puts the state into the position of determining what is and is not religious expression. Christmas is a religious holiday, but are earrings in the shape of Christmas trees a religious symbol? It might be for some, and not for others. How is the state to decide? The state must maintain its neutral stance and not have a perspective, and thus Bill 21 is incompatible with Canada as a secular state.

Why did BCHA and CSA choose these arguments?

All interveners (38 of them – likely a record!) have just five minutes each for oral arguments, and only ten pages for a written submission. Given these restrictions, it’s important to choose a limited number of propositions, so that they may be argued comprehensively. These arguments are at the heart of the purposes of BCHA and CSA, and if accepted will result in a just decision (striking down Bill 21) without the messiness of considering Section 33.

What other legal arguments are there against Bill 21?

There are several other ways to argue against Bill 21. 

One is that the use of the notwithstanding clause is inappropriate in this case, so the freedom of religion clause of the Charter still applies to this law. The Canadian federal government’s submission, for example, will “urge the court to set limits on how the notwithstanding clause could be invoked” to avoid having provincial legislatures “indirectly amending the Constitution”.

Another is to invoke section 1 of the Charter of Rights and Freedoms, which says the rights and freedoms it grants are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Opponents of Bill 21 could argue that this law cannot be demonstrably justified.

Finally, there are sections of the Charter that are not covered by the notwithstanding clause. (Invoking the notwithstanding clause means certain rights guaranteed by the Charter do not apply to a particular piece of legislation, but other rights are not subject to this exemption.) Two such sections are s27 on multiculturalism, and s28 on equality between male and female persons. Given Quebec courts noted that the negative effects of the law, whatever its intentions, falls disproportionately upon Muslim women, the Court might rule Bill 21 to be unconstitutional on these grounds. Other interveners will be making this argument.

What will those who support Bill 21 say?

There are many arguments to be made in the bill’s favour, from a legal perspective. 

Quebec’s duly elected government has passed this bill following the appropriate processes, and it is an overreach of the Supreme Court of Canada to intervene in Quebec’s internal affairs. The Quebec government’s submission will likely be along these lines.

Other arguments will focus on the freedom of religion clause of the Charter and the fact that Quebec invoked the notwithstanding clause. Some interveners may argue that Bill 21 does not violate anyone’s freedom of religion, so such challenges to the law have no merit. Personally, I find this argument weak and doubt it will convince any of the Supreme Court Justices. However, a related one is much stronger: even if the bill violates freedom of religion and/or freedom of expression, these sections are covered by the notwithstanding clause and thus the bill cannot be struck down on this basis. This is essentially the logic of the decisions from the Quebec courts, and the Supreme Court may decide to rule similarly.

Another approach being taken by some interveners is to agree that Canada is a secular nation, and define secularism as the “separation of church and state”. Since Bill 21 applies only to government employees, who are therefore representatives of the state in public-facing roles, Bill 21 is furthering the principle of secularism and there is no Charter violation. This is the basis of why several secular organizations support Bill 21.

This will be a long, complex, and hotly contested hearing. No date has yet been set, though it will likely be at some point in early 2026. A decision probably will not be published for at least six months after that.

CFIC will keep you up to date on this important case as it unfolds.