Bill 21 at the SCC: Day 2

On the second day of hearings at the Supreme Court of Canada on the constitutionality of Bill 21, the Quebec government and three other respondents attempted to justify an unjustifiable law. Together, they advanced a vision of Canadian society in which rights play a narrow and diminished role.

Counsel for Quebec argued that the text, historical context, and past jurisprudence on the notwithstanding clause suggest there should be no judicial review of a government’s invocation of the clause—let alone any declaratory remedy. In Quebec’s view, allowing courts to issue declarations where rights are violated by a law shielded by the notwithstanding clause would improperly draw courts into what it characterized as a “political” debate. The government also attempted to argue that Bill 21 does not violate any section of the Charter at all. Beyond the Charter, Quebec maintained that it had jurisdiction to enact Bill 21 because the law’s pith and substance falls within provincial heads of power, and further argued that the architecture of Canada’s Constitution is limited to the written constitutional text itself.

The Mouvement Laïque Québécois argued that the state cannot provide moral and religious education to children, and claimed that allowing teachers to wear religious symbols is tantamount to imposing religious education on students. It also argued that there is no need for the Supreme Court to impose limits on how section 33 is used or reviewed, because the public can hold governments accountable for invoking the notwithstanding clause, and because section 33 does not bar judicial review of other Charter rights.

Pour les droits des femmes du Québec urged the Court to adopt a very narrow definition of equality—one that would significantly limit the scope of constitutional equality protections.

Finally, the respondent François Paradis argued that the Court should decline to rule on parliamentary privilege in this case.

Taken together, the arguments presented by the respondents ask the Court to accept a constitutional framework where governments can override fundamental freedoms, define equality narrowly, avoid meaningful judicial scrutiny, and characterize rights violations as political questions rather than constitutional ones. That is a vision of the Constitution where rights are optional, not fundamental.