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| Faisal Kutty |
For American observers, the most striking feature of Bill 21 is not simply what it does, but how it survives.
The law prohibits certain public-sector employees — including teachers, police officers, prosecutors and judges — from wearing visible religious symbols while performing their duties. In U.S. terms, it would raise immediate concerns under the First Amendment’s Free Exercise and Free Speech Clauses. A rule that effectively conditions public employment on the abandonment of core religious practices would almost certainly trigger strict scrutiny.
In Canada, however, the analysis is complicated by the presence of s. 33 of the Canadian Charter of Rights and Freedoms — the notwithstanding clause. This provision allows legislatures to override certain fundamental rights, including freedom of religion and equality, for renewable five-year periods.
Quebec invoked s. 33 preemptively to shield Bill 21 from judicial review. Rather than responding to a court ruling, the legislature anticipated constitutional challenges and insulated the law from them at the outset.
That move carries significant implications.
Historically, the notwithstanding clause was conceived as a political safety valve — a rarely used mechanism that would preserve a limited form of parliamentary supremacy in exceptional circumstances. For decades, it was treated as such. Its invocation carried political costs, and governments exercised restraint.
Bill 21 marks a departure from that tradition. It reflects a growing willingness to use s. 33 not as a last resort, but as a first line of defence.
At a doctrinal level, the law is framed in neutral terms. It applies to all visible religious symbols — hijabs, turbans, kippahs and crosses alike. But both Canadian and U.S. constitutional jurisprudence recognize that formal neutrality does not end the inquiry.
Under U.S. law, facially neutral measures may still violate the Constitution if they disproportionately burden religious practice or reflect underlying hostility. Similarly, Canadian equality jurisprudence has long emphasized substantive equality — focusing on impact rather than form.
Bill 21’s impact is not evenly distributed.
Muslim women who wear the hijab, Sikh men who wear the turban and observant Jewish individuals who wear the kippah face a stark choice: abandon visible expressions of their faith or forgo certain public-sector roles. This is not an incidental effect. It is the predictable — and arguably central — consequence of the legislation.
Under a U.S. framework, such a law would likely be subject to strict scrutiny, requiring the government to demonstrate that the restriction is narrowly tailored to serve a compelling interest. The asserted interest in state neutrality would face serious questions. The presence of a public employee wearing a religious symbol does not, without more, constitute state endorsement of religion.
To treat it as such risks conflating individual expression with governmental action.
Canada’s constitutional tradition has generally reflected a similar understanding. State neutrality has been interpreted as requiring the state not to favour or hinder particular beliefs — not to exclude individuals from public participation because of them.
Bill 21 challenges that principle.
The law draws on the concept of laïcité, rooted in French constitutional history, where secularism has often been understood as requiring the exclusion of religion from public institutions. But the Canadian model has historically been more pluralistic, accommodating religious diversity within the public sphere rather than excluding it.
Because of s. 33, the Supreme Court of Canada’s ability to invalidate Bill 21 on Charter grounds is constrained. Yet the case remains profoundly significant. It offers the court an opportunity to clarify the structural role of rights in the Canadian system and to articulate limits — if any — on the use of legislative overrides.
More broadly, it highlights a foundational distinction between U.S. and Canadian constitutionalism.
In the United States, constitutional supremacy is entrenched and judicially enforced. Rights cannot be suspended by ordinary legislation. In Canada, the Charter operates within a more complex balance — one that permits temporary legislative overrides but relies heavily on political restraint.
What happens when that restraint erodes?
Recent years have seen a growing willingness among provincial governments to invoke — or threaten to invoke — the notwithstanding clause in contexts ranging from labour law to electoral regulation. What was once exceptional is becoming more routine.
The risk is not only that particular rights will be limited, but that the Charter itself will be gradually reframed — from a binding constraint on state power to a set of rights that can be periodically set aside.
Bill 21 illustrates that risk in concrete terms.
It also raises enduring questions about the meaning of neutrality in a democratic society. A teacher wearing a hijab or a turban does not transform a public institution into a religious one. To treat such individuals as incompatible with neutrality is to impose a form of uniformity that may be at odds with genuine pluralism.
For American lawyers and policymakers, the lesson is not that Canada’s system is inherently weaker, but that constitutional design — and constitutional culture — both matter. Rights frameworks depend not only on formal guarantees, but on the willingness of political actors to respect their limits.
When governments can preemptively insulate laws from rights review, the burden of protection shifts — from courts to politics.
That shift may prove consequential well beyond Quebec.
At its core, this case is not simply about religious symbols or provincial identity. It is a test of whether constitutional rights function as durable protections for minorities — or as negotiable interests subject to legislative override.
The answer will shape not only the future of s. 33, but the character of Canadian constitutionalism itself.
Faisal Kutty is a lawyer, law professor and writer focusing on constitutional law, international law, Islamic law, national security, and law and religion. His work appears regularly in Newsweek, the Toronto Star, Lawfare and other publications.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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