Bill 21 at the SCC: Day 4

On the fourth and final day of hearings at the Supreme Court of Canada, which will determine the constitutionality of Bill 21 and the proper use of the notwithstanding clause, the remaining twenty-seven intervenors delivered their submissions. In the final thirty minutes, the appellants presented their reply. Together, these submissions addressed the full range of legal issues before the Court, while also underscoring the real-world consequences of Bill 21, particularly for marginalized communities, including Muslim women, and the risks posed by the unrestrained use of the notwithstanding clause.

As on the previous day, many intervenors argued that section 33 of the Charter does not bar courts from issuing declaratory relief when governments invoke the notwithstanding clause. They emphasized that such relief is essential to maintaining legislative accountability. Several intervenors also highlighted the practical importance of judicial oversight. The Canadian Labour Congress noted that it is unrealistic to expect marginalized groups to marshal the resources necessary to influence elected officials and stressed that courts remain a critical and accessible forum for vindicating rights. Similarly, the Canadian Council of Muslim Women argued that declaratory relief can help affirm and legitimize the lived experiences of those facing discrimination.

Other intervenors submissions focused on the proper limits of the notwithstanding clause. Allan Rock, appearing for the Samara Centre for Democracy, cautioned that the pre-emptive use of section 33 undermines the expectation that legislatures will strive to enact laws consistent with the Constitution. Eric Freeman, on behalf of Egale Canada, further submitted that courts should retain the ability to conduct a substantive review of a government’s invocation of section 33, including assessing whether the underlying law pursues a pressing and substantial objective.

Intervenors also drew the Court’s attention to the concrete harms caused by Bill 21, particularly for Muslim women. The Barbara Schlifer Commemorative Clinic and others highlighted how lawyers who wear a hijab or niqab have seen their professional opportunities curtailed, including diminished ability to represent clients, as a direct result of the law. Sujit Choudhry urged the Court to apply an intersectional analysis, arguing that Bill 21 violates section 15 based on the combined discrimination racialized Muslim women face at the intersection of race, religion, and gender, and that this perspective must inform the Court’s equality analysis and Charter remedies.

The hearing concluded with replies from the six appellants. Perri Ravon, counsel for the English Montreal School Board, reminded the Court that the trial record clearly established that Muslim women are disproportionately harmed by Bill 21, and that the presence of religious symbols in schools does not negatively affect students. Olga Redko, pro bono counsel for the CCLA, the NCCM, and Ms. Hak, argued that there are compelling grounds for the Court to grant a remedy under section 52 of the Constitution that would have a tangible impact on those affected by the law. Ultimately, whether such a remedy is granted may turn on a fundamental question: whether there remains meaningful space for civil liberties in Canada, or whether legislatures can set them aside through a simple majority vote.

This case will have profound implications for rights and freedoms across Canada. Many individuals have seen their lives and livelihoods upended by Bill 21, and a broad coalition of lawyers, civil society organizations, and community members has worked tirelessly to bring this challenge forward. Their efforts reflect a powerful commitment to ensuring that the Charter remains a living, meaningful instrument for all.

The Court has reserved its decision.

We are deeply grateful for the excellent pro bono representation of David Grossman, Olga Redko, and Marie-Hélène Lyonnais from IMK in this case.

Written by Henrique Oliveira