Seismic Bill 21 case draws record counsel & intervener presence at this week’s four-day SCC hearing

Law360 Canada (March 23, 2026, 10:47 AM EDT) -- This week’s blockbuster Bill 21 appeal at the Supreme Court involves 140 counsel of record — with 64 of them slated to make oral argument over four days on behalf of the seven main parties and the record 51 interveners.

The momentous appeal in English Montreal School Board, et al. v. Attorney General of Quebec, et al. puts the top court at a constitutional fork in the road, impacting religious freedoms and equality rights, but also the scope of Charter judicial review and the balance between constitutional and parliamentary supremacy.

Underway from March 23 to 26, the appeal turns on a challenge to Quebec’s contentious “secularism” law (Bill 21), which prohibits certain public workers from wearing religious symbols while performing their duties.

In an effort to prevent Charter attacks, the Quebec government invoked the Charter’s s. 33 notwithstanding clause, which allows a provincial legislature or Parliament to override, for renewable periods of up to five years, the Charter’s s. 2-guaranteed fundamental freedoms as well as the legal and equality rights protected by Charter ss. 7 to 15.

The Quebec Court of Appeal below ruled that the Quebec legislative assembly’s use of the s. 33 override clause barred the courts from reviewing and pronouncing on whether the secularism law complies with the Charter: Organisation mondiale sikhe du Canada c. Procureur général du Québec, 2024 QCCA 254.

A pivotal question before the Supreme Court: When a government invokes s. 33 to shield a law from being struck down by a court for violating the Charter, is the court thereby also barred from reviewing and pronouncing on whether the impugned law is Charter-compliant?

The multi-party English Montreal School Board appeal also raises questions related to the Charter’s s. 28 guarantee of equal rights and freedoms to “male and female persons” and whether s. 28 is an independent right not subject to the s. 33 override; the Charter’s s. 23 guarantee of minority language educational rights; and the Charter’s s. 3 protection of the right to vote.

Helping the judges to find their way to judgment are a total of 31 counsel of record for the main parties, representing the Attorney General of Quebec (who is defending the decision below) and the six other main parties who are challenging the Appeal Court’s ruling.

Of those counsel for the main parties, 14 lawyers will rise to their feet to make oral argument in the courtroom during the first two days of hearings reserved for the main parties.

There are a total of three hours of argument each day (six appellants on March 23) and Quebec and three other respondents on March 24, with the time shared among the parties.

As usual, counsel for the appellant parties plead first, followed by respondents’ counsel. In line with the court’s practice, when there are multiple appellants and respondents, counsel were invited to agree among themselves as to how to divide their allotted time.

As they developed their arguments, there was some initial coordination among counsel for the main parties challenging Bill 21, Law360 Canada was told. Counsel are ready to adjust their advocacy during the hearing, based on the judges’ reactions to each argument, a source said.

There was also some coordination among the record 51 interveners in the appeal — including six attorneys general — who will advocate on March 25 and March 26 of the four-day hearing.

All interveners are appearing via Zoom. The court turned down multiple requests to have intervener counsel argue in person in the courtroom.

Each of the intervener attorneys general have 15 minutes to engage with the bench. Counsel include Ontario Attorney General Doug Downey, who is slated to argue his province’s position in person. Alberta is represented by the province’s Deputy Attorney General and Deputy Minister of Justice Malcolm Lavoie. Lead counsel for the federal government is prominent appellate litigator Guy Pratte of Borden Ladner Gervais LLP.

The Supreme Court told Law360 Canada that attorneys general who appear as interveners are heard in the order their provinces joined Confederation.

The other 45 interveners — represented by 109 counsel of record — are to argue in the order in which their motions for leave to intervene were filed, the court said.

Beginning on day three of the hearing, 23 intervener lead counsel will be on their feet trying to persuade the judges during the five minutes each of them has been accorded by the court.

On day four of the hearing, the judges will hear from the 27 lead lawyers representing the final group of interveners.

Typically, when there are multiple interveners at the Supreme Court on the same side of an appeal, there is some effort to co-ordinate submissions, said Ottawa’s Lawrence David, counsel with Jeffrey Orenstein for the intervener Public Interest Litigation Institute.

“Usually what tends to happen is that an intervener will send an email to other interveners and propose that a meeting be held precisely to ensure that submissions do not overlap and that there is an opportunity to maximize everyone’s submissions by focusing on particular issues,” said David, a frequent litigator at the high court.

“What I’ve also seen happen is sometimes interveners will call for a meeting based on what the judges seem to be focused on during the hearing, at least based on questions posed to the actual main parties,” he said. “And then before the time for interveners starts, … there will be an exchange between interveners as to what should be maximized or added in terms of people’s submissions.”

Angela Marinos, counsel on the Bill 21 appeal for the intervener Raoul Wallenberg Centre for Human Rights, said, “There has been an attempt to coordinate here and there. For example, there was an email from one counsel wanting to set up a meeting for all the interveners who were intervening on the issue of the jurisdiction of courts where s. 33 is invoked.”

But, “there hasn’t been a meeting with all of us together, and there’s no shared or coordinated strategy on the substance of the arguments, as far as I’m aware,” Marinos told Law360 Canada.

“There was a coordinated push among many of us to urge the court to allow the interveners to appear in person, if they so chose, but the court rejected that request.”

The Raoul Wallenberg Centre for Human Rights is intervening on an issue of international law. “There’s not that many of us who are intervening on this issue, so this has been my strategy,” Marinos explained. “I have reviewed all the factums, with special attention to the factums where international law is being raised, and made sure that I’m not duplicating what anyone else is saying. I am also reviewing the condensed books that are coming in, and honing in on the international aspect, to ensure that there’s no redundancy.”

“Throughout, I am thinking about what would be most helpful in advancing this issue, both for the court and in terms of the common law. If the court asks questions, I expect each of us just wants to answer as succinctly and incisively as possible,” she said. “Fortunately, there are so many interesting aspects to international law and various different threads that we can pull in the five minutes that we each have. It’s a big room, but we each have to do our part to not step on each other’s toes on the dance floor.”

Harini Sivalingam of the Canadian Civil Liberties Association (CCLA) — an appellant and main party in the Bill 21 appeal — said that while the appellants agree on the outcome they want to see, they won’t repeat the same arguments over and over before the judges.

“I think all the parties are talking about different aspects, although there is obviously some overlap,” said Sivalingam, director of the CCLA’s equality program. “I think there is coordination that happens between counsel to ensure that … the focus of our oral arguments are very distinct.”

Whatever the appeal’s outcome, Sivalingam said the judges’ decision is expected to be the constitutional case of a generation.

Photo of the Supreme Court of Canada’s judges: SCC Collection

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