The federal government detailed its arguments in a legal filing at the Supreme Court on Wednesday as part of the landmark case on Quebec’s secularism law.Sean Kilpatrick/The Canadian Press
Ottawa is calling on the Supreme Court of Canada to clarify the law around governments’ use of the Charter’s notwithstanding clause, arguing that courts should have a bigger role in such cases than previously granted by legal precedent.
If the Supreme Court accepts Ottawa’s arguments, it will mark the first substantive limits on governments’ use of the notwithstanding clause to override the rights of Canadians since the Charter of Rights and Freedoms was enacted in 1982.
The federal government detailed its arguments in a legal filing at the Supreme Court on Wednesday as part of the landmark case on Quebec’s secularism law, Bill 21.
Ottawa argued that courts should be able to declare rights have been violated, even if the notwithstanding clause means a law cannot be struck down. It also proposed judicial review of longer-term use of the notwithstanding clause, arguing that prolonged use that prevents people from exercising rights is equivalent to denying those rights.
Ottawa, provinces set to file arguments in landmark Supreme Court case over Quebec’s secularism law
The filing propels Ottawa toward a clash with the provinces, including Quebec, Ontario and Alberta, on core constitutional questions. Quebec has said its political autonomy is at stake. Ontario and Alberta, in filings to the top court on Wednesday, supported Quebec and backed unrestricted use of the notwithstanding clause.
In 2019, Quebec used the notwithstanding clause to shield Bill 21, legislation that aimed to promote secularism in the province, from court challenges. The law bars public-service workers, including teachers and police, from wearing religious symbols such as crosses and hijabs on the job. The law upended the lives of numerous Quebeckers and is widely seen as a violation of freedom of religion.
A Supreme Court hearing on Bill 21, which has not yet been scheduled, will be the first time in almost four decades that the top court conducts an in-depth adjudication of the notwithstanding clause. A 1988 Supreme Court precedent generally endorsed governments’ unfettered use of the clause.
The notwithstanding clause can be invoked to shield legislation for up to a five-year period, at which point it must be re-enacted. The Charter’s Section 33 doesn’t indicate limits on such re-enactments. Quebec renewed the clause last year for Bill 21, five years after it first became law.
In its filing, Ottawa urged the Supreme Court to impose some limits, such as allowing the courts to rule on whether continual use of the notwithstanding clause by a government results in an “irreparable impairment” of Canadians’ rights. Ottawa didn’t prescribe a precise limit but said continual use of the clause “would amount to indirectly amending the Constitution.”
“The prolonged impossibility of exercising a right or freedom would, in practice, be tantamount to denying its very existence,” the federal government argued in its Supreme Court filing.
Ottawa also wants the Supreme Court to grant lower courts the power to declare constitutional rights have been violated by a law protected by the notwithstanding clause, even if the clause keeps the law in force.
The federal Liberal government’s official legal position is less forceful than what it had expressed in recent years, when top party leaders argued against pre-emptive use of the notwithstanding clause. Prime Minister Mark Carney, speaking last March on the federal election campaign trail, said he had “a problem” with pre-emptive use.
Ottawa’s filing on Wednesday avoided that controversial issue, which would have marked a more direct confrontation with the provinces. Quebec in 2019 pre-emptively used the notwithstanding clause in Bill 21 before there were court challenges.
The federal government is an intervenor at the Supreme Court in the Bill 21 case rather than one of the main parties. Five provinces are also intervenors, as well as dozens of other groups.
There are many constitutional legal questions in play, such as Charter rights for minority language education and gender equality, but a central legal issue is the notwithstanding clause.
Bill 21 was twice upheld in the lower courts in Quebec and the Supreme Court agreed to hear the case in January. Six groups of appellants earlier this year filed an array of arguments against Bill 21, but Quebec in August countered that there is no legal basis to overturn long-standing Supreme Court precedent.
Wednesday was the deadline for most of the remaining legal filings that are part of the Bill 21 case.
The eventual Supreme Court ruling on Bill 21 will reverberate politically for years to come, as it shapes the division of powers between the judicial and legislative branches of government.
In the early 1980s, when Canada patriated the Constitution from Britain, the Charter’s notwithstanding clause was an essential compromise to get the deal done. Provinces at the time sought to ensure legislators’ powers as the Charter handed courts a greater ambit to strike down laws.
Manitoba, in a Bill 21 legal filing on Tuesday, supported Ottawa’s position that asserted courts should be able to declare a rights violation on a law that uses the notwithstanding clause. Manitoba called this a “dialogue between the judicial and legislative branches of government.”
British Columbia in its filing on Wednesday also backed judicial declarations and pointed to “profound implications for minority rights and religious freedom” in the Bill 21 case. But, in general, B.C. and Manitoba did not support other restrictions on the notwithstanding clause.
Ontario, Alberta and Saskatchewan, in their legal filings to the Supreme Court on Wednesday, fully stood alongside Quebec and are against any restrictions or judicial declarations.
The filing by Ontario said the province “does not support Quebec’s decision to require citizens to remove religious symbols to serve the public” but concluded “that is a decision for [Quebec’s] National Assembly, and ultimately the voters of Quebec, to make for themselves.”
Alberta is against “any form of substantive judicial review” of governments’ use of the notwithstanding clause and told the Supreme Court that “creative arguments” that call for restrictions “should be rejected.” Saskatchewan said some political choices are “reserved to democratic institutions rather than the courts.”