Christian Legal Fellowship (Alliance des chrétiens en droit) is intervening in the constitutional challenge to Bill 21, Quebec’s law on laïcité (secularism), at the Supreme Court of Canada. CLF is arguing that provinces have no constitutional authority to prohibit lawyers from openly affiliating with their religion, or to compel them to implicitly identify as "irreligious" at work.
Bill 21 was enacted to “enshrine” the “paramountcy of State laicity [in] Quebec’s legal order” and prohibits a number of professionals in the public sector from wearing religious symbols – including lawyers who work for, or are under contract with, the provincial government. As a result, Bill 21 has prevented openly religious lawyers from becoming Crown prosecutors or working in the public sector.
Since Bill 21 was introduced, CLF has decried its exclusion of openly religious lawyers, and others, from public service.
As CLF explains in its factum:
“Forcing lawyers of faith to adopt one “part-time” religious identity in private and another “part-time” irreligious identity at work effectively excludes them from public service. Such a bifurcation is impossible: there is no such thing as a partial religion, especially for those whose beliefs require a certain and consistent orthopraxy. It is also contrary to the ethos of a profession that depends on inner wholeness and integrity.”
CLF argues in its factum that this type of compulsion is beyond the constitutional powers of any provincial legislature for at least two reasons:
First, enshrining a public doctrine of (ir)religion to dictate the fundamental place of religion in society is a matter of national concern, as “there is nothing to which the ‘body politic of the Dominion’ is more sensitive” (citations omitted).
Second, sanctioning religious expression, solely because it is religious, in order to compel an (ir)religious observance for a(n) (ir)religious reason is a matter of criminal law. Canadian case law is clear that “limitations on work or play which are imposed for religious reasons are criminal laws solely within the competence of the federal Parliament” (citations omitted).
the place of religion in society is of national concern
As CLF explains in its Factum, Bill 21 insists that religion - and, by necessary extension, openly religious identities - be categorically removed from certain public spaces, and essentially relegated to certain parts of the private sphere. The trial judge noted that Bill 21’s laïcité requires the “bannissement”, “effacement”, “inexistence”, “disparition”, and “absence” of religion in this regard.
CLF’s submissions articulate why replacing state neutrality with laïcité is a fundamental redefinition of the relationship between the state and religion.
The state’s approach to the place of religion in society is, by necessity, a matter of national concern given that it requires a certain degree of national uniformity to preserve national unity, social peace, and public order. And this has been achieved through the longstanding principle, since before Confederation, that Canada is neither a sectarian society nor an anti-religious one.
Canada does not have an established religion or irreligious doctrine, and the Constitution does not grant provincial legislatures or Parliament the power to unilaterally enshrine one.
public (ir)religious morality is a matter of criminal law
CLF’s factum also explains that, while both the federal and provincial legislatures may enact laws that affect religious practice or exercise, they must relate to matters within their respective jurisdictions: a question determined not merely by the legislator’s assertion of the law’s subject matter, but an independent judicial analysis of its true purpose and effect.
There is a crucial distinction between a statute “affecting” religion and one enacted “in relation to” religion as such.
CLF argues that compelling certain lawyers to deny their religious identity has no demonstrable “relation” to professional regulation (such as ensuring their competence, skill, or qualifications); rather, it is an attempt to regulate religion for a religious purpose (namely, promoting the government’s preferred philosophy of religion), which falls outside the scope of provincial authority.
Although Bill 21 invokes the notwithstanding clause (s. 33 of the Charter), that section affects the application of s. 2 and s. 7-15 of the Charter only. It does not erase other constraints on legislative jurisdiction, including those highlighted in CLF’s submissions (namely, the separation of powers and the division of powers in the Constitution Act, 1867):
“ [Section 31 of the Charter] ensures that no government can invoke the Charter (including s. 33) to extend its legislative powers or enact legislation that it lacked authority to pass prior to, or independently of, the Charter. The notwithstanding clause only enters the legal calculus after an impugned law has been found to be intra vires the enacting body. And while a provincial legislature has jurisdiction to enact legislation within its s. 92 constitutional powers that may affect religion, laws that have, as their very purpose, the regulation of religion qua religion are essentially different in nature and have been deemed ultra vires the provinces.”
CLF looks forward to delivering oral submissions before the Supreme Court of Canada at the appeal, and remains committed to upholding religious freedom in Québec and across the country.
Read more on how you can support the work of CLF.
Read CLF/ACD’s Factum
Beginning on page 34:
Learn more:
Read CLF’s report on the Québec Court of Appeal decision (EN/FR)
Read CLF’s Bill 21 Hearing Report from the Québec Court of Appeal (EN/FR)
Read more about CLF’s intervention before the Québec Court of Appeal (EN/FR)
Read more on CLF’s advocacy on Bill 21 in Québec since 2019
Read more on Québec’s 2023 ban of student-initiated religious practices on school grounds