A recent SCC decision and its importance for the case against Quebec's Bill 21

The Substack has been a little quiet lately as I have been away on field work to the UK (interviewing parliamentarians about their Online Safety Act - part of a larger project on the regulation of online hate speech in Canada, New Zealand, and the UK).

But I have a new piece out this week in Constitutional Forum. This short paper looks at a recent decision of the Supreme Court dealing with section 25 of the Charter, which holds that “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada…”

In Vuntut Gwitchin, a majority of the Court held that section 25 is not merely an ‘interpretative’ provision that informs other parts of the Charter but has the substantive effect - in certain contexts - of acting to ‘shield’ Indigenous rights (and policies of First Nations governments that further those rights) from individual rights claims under the Charter.

In my paper, which you can access for free here (pdf), I argue this decision has important implications for any interpretation of section 28 of the Charter, and specifically whether section 28 - properly interpreted - precludes the application of the notwithstanding clause to laws that violate sexual equality rights. In short, I argue Vuntut Gwitchin counters the proposition that all of the provisions in the ‘General’ section of the Charter are merely interpretative and thus do not have such substantive effects of conditioning or blocking the application of other provisions in the Charter.

In my opinion, this is something that the Court will have to grapple with in the ongoing challenge against Quebec’s Bill 21. A textual reading, a reading that takes account of legislative history, and now an important and very recent decision on one of the other ‘General’ provisions now all speak in favour of the idea that laws that violate the equal rights and male and female persons cannot be protected by section 33.