Bill 21 at the SCC: Day 1

Today marked the first of four days of hearings before the Supreme Court of Canada, where the Canadian Civil Liberties Association (CCLA) and other appellants presented arguments challenging Bill 21 and calling for meaningful limits on the use of the notwithstanding clause.

Counsel for the six appellants advanced compelling arguments that Bill 21 should not be shielded by Quebec’s use of the notwithstanding clause. They submitted that the law is inconsistent with the architecture of Canada’s Constitution and infringes Charter protections — including minority language rights and democratic rights — that cannot be overridden by the notwithstanding clause.

Pro bono counsel for the CCLA, the NCCM, and Ms. Hak, David Grossman, warned the Court that the unrestrained use of the notwithstanding clause could allow a simple legislative majority to effectively amend the Constitution through the backdoor. He argued that this is precisely what Bill 21 does by undermining a foundational constitutional principle: that participation in public service must remain open to people of all backgrounds — a principle that predates Confederation and is fundamental to a free and democratic society.

Counsel for the CCLA, Olga Redko, also argued that Quebec lacked jurisdiction to enact the provisions of Bill 21 that prohibit public servants from wearing religious symbols. She submitted that these provisions fall under the federal criminal law power because they seek to enforce a state moral code through prohibitions backed by sanctions.

The CCLA is immensely grateful for the excellent pro bono representation of Olga Redko, David Grossman and Marie-Helene Lyonnais of IMK LLP.

The hearings continue tomorrow.