The Supreme Court taking the case would make it a 'national issue,' Federal Justice Minister Arif Virani’s office confirmed. Virani speaks in the House of Commons in Ottawa, on May 6.Spencer Colby/The Canadian Press
Federal Justice Minister Arif Virani says governments should not use the Charter’s notwithstanding clause to circumvent the rights and freedoms of Canadians, arguing against the tactic as provinces increasingly use it and the Supreme Court of Canada is set to decide whether to hear a major case on the issue.
In an interview Friday, Mr. Virani said the notwithstanding clause should “always be a tool of last resort.” When asked for a situation in which it should be deployed, Mr. Virani said: “I am hard pressed to see any circumstance where it would be justified.”
The notwithstanding clause, Section 33 of the Charter of Rights and Freedoms, allows governments to override parts of the document, including fundamental rights such as freedom of religion, legal rights such as the presumption of innocence, and equality rights such as protection against discrimination based on ethnicity, age or other factors.
The federal government has never used Section 33, but provinces have deployed it more than a dozen times since 1982. In recent years, Ontario, Quebec and Saskatchewan have invoked it several times. Federal Opposition Leader Pierre Poilievre has promised to be the first prime minister to use it if the Conservatives win the 2025 election, on criminal issues such as sentencing and bail.
The debate over whether and how governments use the notwithstanding clause could soon land at the Supreme Court. In late February, the Quebec Court of Appeal upheld Bill 21, a provincial law that depends on Section 33 and bans public service workers, including teachers and police, from wearing religious symbols such as crosses or hijabs on the job.
In late April, the National Council of Canadian Muslims, the Canadian Civil Liberties Association and teacher Ichrak Nour El Hak sought leave to appeal to the Supreme Court. They argue Bill 21 is discriminatory and unconstitutional. Legal experts predict the top court will probably hear the case. The court’s decision to proceed or not could be made public next week.
If the top court takes the case, the federal government will officially intervene in the dispute for the first time. The Supreme Court taking the case would make it a “national issue,” Mr. Virani’s office confirmed, reiterating previous statements.
Ottawa to date has avoided direct confrontation with Quebec on Bill 21 but became more outspoken as the legal case progressed. In late 2021, Prime Minister Justin Trudeau said he was opposed to Bill 21 but wouldn’t intervene in the court case in Quebec. In early 2023, Mr. Trudeau said he opposed the pre-emptive use of the notwithstanding clause, as Quebec had done with Bill 21, and said Ottawa would intervene if Bill 21 reached the Supreme Court.
In mid-2023, Mr. Poilievre also said he opposes Bill 21.
On Tuesday – United Nations Human Rights Day – the Civil Liberties Association launched a campaign dubbed “Save our Charter” against the use of Section 33. Anaïs Bussières McNicoll, director of the group’s fundamental freedoms program, told reporters it is “deeply alarming” that some provincial governments use Section 33 to “prevent courts from striking down horrendous rights violations.”
The Quebec Court of Appeal, in a summary of its February ruling, did not weigh the “wisdom of enacting” Bill 21 and instead deemed Quebec’s use of Section 33 to be constitutional, saying that the Supreme Court precedent, the 1988 Ford case, “is still authoritative.” The Quebec appeal court, in its judgment, also noted pre-emptive use is allowed, where “the legislature has the last word from the outset.”
Bill 21 aims to protect “laicity” – secularism – in Quebec. After the provincial government’s win in court, Premier François Legault said: “Secularism is a principle that unites us as a nation in Quebec.”
Section 33 is a uniquely Canadian tool and its philosophical roots stretch back to the 1960 Bill of Rights. In late 1981, then-justice minister Jean Chrétien in the House of Commons described Section 33 as “a safety valve which is unlikely ever to be used except in non-controversial circumstances.” This was a common assertion at the time but after the 1982 Constitution Act, Quebec often used Section 33 through to the late 1980s on a range of laws.
Provinces thereafter rarely invoked Section 33 until the late 2010s, when conservative governments in Ontario, Quebec and Saskatchewan revived its use. Ontario this fall considered using Section 33 to clear homeless encampments but last week decided against it. Premier Doug Ford warned he still would invoke it if courts restricted the ability of cities to prohibit encampments.