i've told you why i support bill 21. what do i think about the constitutional challenge?
it doesn't stand a chance. the court might rule the law is unconstitutional, but it has no jurisdiction to unilaterally amend the charter. there is a process to amend the charter, and an appeal to the supreme court is not it.
the appeal is a performative act by the federal government. it knows it has no chance of success. in fact, if it thought the appeal had a chance of success, i think it's extremely unlikely that it would risk the wrath of quebecois voters in launching it. the liberals, at both the provincial and federal level, have actually supported very similar legislation.
so, the whole thing is a political stunt by ottawa. it has no chance of success. the supreme court should probably even declare some of the groups arguing against the law to be vexatious litigants, as their arguments have no legal basis and are absurd and a waste of time. while the court cannot declare the federal government vexatious, the appeal is clearly vexatious to the letter of the term, in every conceivable way. it's not a serious legal argument, it's a time wasting and performative political exercise.
the supreme court has a lot of power, but it cannot amend the constitution. that's it. case closed. go home.
the purpose of the notwithstanding clause was supposed to be the opposite of this. a right-wing government in alberta led by peter lougheed was afraid that ottawa might do something like pass a law banning abortion (in canada, our roe v wade is called morgantaler and didn't happen until 1988 and could not have happened without the constitution, as ratified in 1982) and wanted a trump card. the justice minister at the time, jean chretien, did not support this position. nor did mr chretien support the inclusion of property rights, religious rights or religious language in the constitution, which was what lougheed concerned about, exactly. what if this crazy guy chretien became prime minister one day?
pierre trudeau famously kicked chretien in the shins in response, and we have a notwithstanding clause, notwithstanding chretien's opposition to it.
if the court really doesn't like bill 21 in the end, something i'm not convinced will be the case, it has the option to state as much. it would then need to do something called balancing, using a process called an oakes test. the oakes test asks if the law is a justifiable rights restriction, even if it's unconstitutional. this is not the united states.
so, the court needs to ask:
- is the law unconstitutional?
- is the law consistent with the quebec constitution?
- if the law is unconstitutional, is it a justified rights restriction?
- if the law is not a justified rights restriction, does the court have jurisdiction to overturn it?
the government might get the answer it wants on every question except the last one. i don't think that's going to be the case, but it might be.
a possible outcome is therefore the supreme court releasing a scathing analysis, but finding it has no jurisdiction to overturn the law.
i think that a more likely outcome is that the court's majority will conclude that the law is consistent with quebec's charter, and decide that that is more important. this might, in theory, be a law that can only exist in quebec, the notwithstanding clause notwithstanding. that would clarify how provincial governments in the rest of the country need to act if they want to emulate the law in their own provinces.