Demonstrators waving an upside-down Quebec flag march during a protest in Montreal against the provincial government's Bill 21 in April, 2019.Graham Hughes/The Canadian Press
Federal and provincial attorneys-general on Wednesday are set to file their legal arguments in the landmark Supreme Court of Canada case over Quebec’s secularism law – staking out potentially controversial positions after years of public debate.
At stake is how governments use the notwithstanding clause, Section 33 of the Charter of Rights and Freedoms, which allows legislators to override a wide range of rights, from freedom of religion to the presumption of innocence for someone charged with a crime.
In 2019, Quebec pre-emptively used the notwithstanding clause to shield Bill 21 from court challenges when it passed the legislation. The secularism law bars public-sector workers, including teachers and police, from wearing religious symbols such as hijabs and crosses on the job.
Ottawa’s decision about where it stands on crucial Charter questions is both a legal and political one. Federal Liberals, including Prime Minister Mark Carney, have previously said they oppose pre-emptive use of the notwithstanding clause. Quebec has said its autonomy is in peril and that it sees incursions from Ottawa as an attack.
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Dave Snow, an associate professor of political science at the University of Guelph, said the Supreme Court restricting pre-emptive use of the notwithstanding clause would be akin to “throwing a political bomb” at Quebec. But he doesn’t think the top court would make such a leap in its eventual ruling, even if pressed to do so.
Wednesday is the deadline for the last big pile of legal arguments to be filed in the Bill 21 case. Among the three dozen or so submissions set to land, the filing from federal Attorney-General Sean Fraser is the most highly anticipated.
Mr. Carney said during the federal election campaign in late March that he has “a problem” with pre-emptive use of the notwithstanding clause. In 2022, then-justice minister David Lametti, now Mr. Carney’s principal secretary, said pre-emptive use of the clause “guts Canadian democracy.” Former prime minister Justin Trudeau opposed pre-emptive use both in his public rhetoric and in the House of Commons.
Should Ottawa take a position against pre-emptive use in its official filing to the Supreme Court, it would effectively be asking the top court to in part amend its 1988 Ford decision, the long-standing precedent that generally endorsed governments’ unfettered use of the notwithstanding clause.
A hearing at the Supreme Court has not yet been scheduled. Quebec filed its legal arguments in August. Bill 21 was twice upheld in the lower courts and Quebec’s Attorney-General said opponents of Bill 21 at the top court want to overturn Supreme Court precedent. Quebec argues there is no evidence to make such a ruling.
Five provinces are also set to file arguments. Ontario, Alberta and Saskatchewan are likely to support Quebec and the provinces’ unrestricted use of the notwithstanding clause. British Columbia and Manitoba are also set to weigh in. New Brunswick dropped out of the case in August without saying why.
Mr. Fraser has a variety of other legal avenues he could present to the Supreme Court. In July, Ottawa noted in a brief court filing that 17 constitutional questions had been tabled by the main parties.
The federal and provincial attorneys-general are intervenors in the Bill 21 case, a position automatically granted to them because they have a direct stake in the outcome, even though they are not a main party. The provinces in a brief July filing said the eventual ruling could “greatly impact the constitutional powers and legislative sovereignty of the provincial legislatures.”
There are 38 other intervenors to which the Supreme Court granted standing. Their legal arguments are also due on Wednesday.
A handful have been filed early. The Public Interest Litigation Institute said the 1988 Ford precedent was “wrongly decided” and the pre-emptive use of the notwithstanding clause should be prohibited. The Canadian arm of the International Commission of Jurists said the Supreme Court should reconsider the Ford ruling and impose “substantive conditions” on the use of the notwithstanding clause.