People congregate outside the Supreme Court as the court hears the appeal on Quebec's secularism law on Monday.Sean Kilpatrick/The Canadian Press
The federal government clashed with Ontario and Alberta at the Supreme Court of Canada on Wednesday as they argued over potential limits on the Charter’s notwithstanding clause.
The federal government called on the Supreme Court to impose, for the first time, limits on repeated use of the notwithstanding clause. Ottawa is also asking for courts to have the ability to issue declarations saying that laws that invoke the clause have violated Canadians’ rights, even if the clause prevents judges from overturning those laws.
Ontario and Alberta argued staunchly against any limits on the clause and opposed the idea of judges looking at potential rights violations – asserting that the invocation of the clause means there is no role for the courts.
Lawyers for the governments appeared by Zoom at the country’s top court in the landmark case on Quebec’s secularism law, known as Bill 21. Quebec shielded the law, enacted in 2019, from court challenges with the notwithstanding clause in the Charter of Rights and Freedoms. The tool allows governments to override a long list of rights, including freedom of religion and the right to equality. The law was twice upheld in the lower courts.
The eventual ruling in the Bill 21 case will likely reverberate for years to come. It will decide key questions on how the Charter operates, sharpening the boundaries between governmental powers and Canadians’ rights.
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On Wednesday, Ottawa and the provinces pointed to the political history of the early 1980s, when the Charter became part of the Constitution. Back then, Ottawa made a crucial compromise with the provinces to include the notwithstanding clause in the Charter. Each government had 15 minutes to convince the judges of their views.
Guy Pratte, senior counsel at Borden Ladner Gervais in Ottawa, argued on behalf of the federal government. He said the provinces have a “broad margin” to use the clause without any prior justification, but insisted the political compromise of the early 1980s didn’t mean that governments could repeatedly use the clause to effectively eliminate Charter rights.
“That would not at all be the intention of the framers,” Mr. Pratte told the judges, referring to the politicians that decided on the details of the Charter.
Ontario Attorney-General Doug Downey said arguments from Ottawa and other challenges to Bill 21 amount to a call “to rewrite the Constitution.”
Mr. Downey said the Supreme Court should reject the proposal of judicial declarations on rights violations when the clause is used in law.
“Courts should not provide opinions,” said Mr. Downey, describing judicial declarations as an “academic exercise” that could mislead Canadians.
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Alberta Deputy Minister of Justice Malcolm Lavoie said the notwithstanding clause is a fundamental feature of the Constitution that ensures provinces can “chart their own course in a united Canada.”
He repeatedly argued against judges declaring rights violations if the clause is used. In a concluding statement, he said such a move would “step well outside the judicial role,” something that would be “unprecedented and unnecessary.”
On Parliament Hill on Wednesday afternoon, Bloc Québécois Leader Yves-François Blanchet challenged Prime Minister Mark Carney about the Bill 21 case, and the separation of church and state, during question period in the House of Commons.
“It is the responsibility of the federal government to defend [the] Charter,” Mr. Carney told the House of his government’s arguments at the Supreme Court. “We will await the result.”
The seven judges hearing the case at the top were mostly quiet on Wednesday, compared with the volley of questions that were asked on Monday and Tuesday. On Wednesday, when the governments presented their arguments, Justice Malcolm Rowe interjected five times on issues such as the interplay between courts and elected politicians. None of the other judges asked a question of the various governments.
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Wednesday in particular saw top legal and political names at the Supreme Court.
Mr. Pratte, speaking for Ottawa, is a leading appellate lawyer and his father Yves was a Supreme Court judge for two years in the late 1970s.
Mr. Downey’s appearance on behalf of Ontario was unusual. Elected officials rarely present arguments at the Supreme Court. Jack Fazzari, a spokesperson for Mr. Downey, said the Attorney-General chose to personally make the arguments because of the case’s “lasting implication for our country.”
Mr. Lavoie, a law professor on leave from the University of Alberta, became Deputy Minister of Justice in Alberta two years ago. It is also unusual for a deputy minister to make arguments at the Supreme Court. Mr. Lavoie has helped drive the Alberta government’s strategy on the notwithstanding clause at the Supreme Court and in practice. Alberta last fall used the clause to shield four different laws from court challenges.
Wednesday marked the third of four days of hearings on Bill 21, one of the longest hearings in the Supreme Court’s history. Challengers to Bill 21 appeared on Monday. Quebec defended its law on Tuesday.
All of the arguments on Wednesday were presented on Zoom. The judges, lawyers and everyone else in the full courtroom in Ottawa spent the morning looking at screens mounted on the walls.
Since 2022, the main parties attend in person in the courtroom – all the lawyers for the appellants and respondents have been present throughout the week – but outside interveners groups, including other governments, are relegated to Zoom, a court policy put in place by Chief Justice Richard Wagner.
Last summer, the provincial and federal governments had asked for a one-time exemption from the interveners-on-Zoom rule for the Bill 21 case, given the significant constitutional stakes, but Chief Justice Wagner said no to the request last December.