Bill 21 at the SCC: Day 3

On the third day of hearings in the challenge to Quebec’s Bill 21 at the Supreme Court of Canada, interveners presented competing interpretations of the proper use of the notwithstanding clause and its relationship to the constitutionality of Bill 21. While there was a divide among Attorneys General on the scope of judicial oversight, the majority of civil society interveners urged the Court to affirm that governments cannot use the notwithstanding clause to completely shield laws from meaningful judicial review.

The Attorneys General of six governments were the first to present arguments today. On one end of the spectrum, Alberta, Ontario, and Saskatchewan argued that allowing courts to review a government’s use of the notwithstanding clause—or the laws it shields from Charter scrutiny—would undermine parliamentary supremacy and the constitutional compromise that led to the adoption of the Charter. Manitoba and British Columbia took a somewhat more moderate position, acknowledging that courts may retain the authority to review laws protected by the notwithstanding clause and issue limited declaratory relief. The Attorney General of Canada went further, arguing that the notwithstanding clause is intended to be temporary and cannot be used in a way that irreparably harms Charter rights. As such, courts must retain jurisdiction to determine whether a government’s use of the clause effectively amounts to an unconstitutional amendment.

Seventeen additional interveners also made submissions. Most challenged the constitutionality of Bill 21, arguing that Quebec does not have jurisdiction to impose a particular model of secularism, that section 28 of the Charter provides a substantive gender equality guarantee, and that Bill 21 is inconsistent with Canada’s international human rights obligations. Several interveners also argued that the purpose and wording of section 33 do not preclude judicial review of laws enacted under the notwithstanding clause and doesn’t foreclosure the issuance of declaratory relief as a meaningful remedy.

The day concluded with a powerful reminder of what is at stake. Mannu Chowdhury, appearing for the South Asian Bar Associations et al, cautioned against reliance on stereotypes and generalizations in constitutional litigation, emphasizing that courts must base their decisions on evidence and constitutional principles—not harmful assumptions about the communities most affected by the law, such as Muslim women who choose to wear religious coverings.