It would be a grave error for the Supreme Court to accede to the government’s urging and simply conjure up limits on the notwithstanding clause meant to limit its own powers.Adrian Wyld/The Canadian Press
In a classic bit of projection, Ottawa claims that the repeated use of the notwithstanding clause can constitute an “unauthorized” constitutional change that brushes aside the existing amending procedures in the Constitution.
And so, the Liberal federal government is aiming to... brush aside the amending procedures in the Constitution by asking the Supreme Court to rule that the re-invocation of the notwithstanding clause is unconstitutional.
The Liberals take that provocative position in a factum submitted to the Supreme Court in the case of Quebec’s Bill 21, which prohibits public sector workers from wearing religious symbols. The Quebec legislature invoked the notwithstanding clause in 2019 to shield that law from Charter challenges, and again in 2024.
This space has consistently voiced opposition to Bill 21 as an unfair restriction on religious liberty. And we have voiced concern about the increasing propensity of provincial governments to use the notwithstanding clause, particularly preemptively.
The actions of Quebec and other provinces are objectionable – but they are also constitutional. One need not enthuse over the notwithstanding clause to see the danger in Ottawa looking to contort the plain meaning of the words in the Constitution in order to avoid the messy work of securing an amendment by winning over the country to its view.
The wording of the notwithstanding clause is perfectly clear. A legislature can invoke it to shield a law that would otherwise violate sections 2 or 7 through 15 of the Charter. That declaration expires after five years, almost certainly after an election has been held. And then, “Parliament or the legislature of a province may re-enact” such a declaration. There are no other restrictions laid out in the Constitution.
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Nevertheless, Ottawa asserts that the use of the notwithstanding clause is meant to be temporary. Repeated invocation would effectively extinguish the Charter right in question, the federal government says, meaning that a legislature would have altered the Constitution through the back door.
The government’s factum goes on to note the existence of “the constitutional amending procedure, which is the only means by which an amendment to rights and freedoms can be made.”
Quite so. If the federal Liberals believe that the notwithstanding clause needs to be constrained, there is a mechanism at hand, and it is not a sitting of the Supreme Court. Section 38 lays out the amending formulae quite clearly, including in the case of such matters as the notwithstanding clause: at least two-thirds of provinces accounting for at least half of the population (the 7/50 formula) must support the amendment.
That is a high bar to clear. But amending the Constitution should be difficult, no less so than for the notwithstanding clause, a key part of the political bargain that cleared a path for the Charter of Rights and Freedoms in 1982. The effect of constitutional politics on parliamentary supremacy was to be tempered by the notwithstanding clause. Unlike in the United States, legislators, not judges, would have the final say in Canada, within bounds.
And voters would be the ultimate check on those legislators. The five-year expiration date of the notwithstanding clause means that a government invoking it will have to account for its actions in an election campaign.
In that context, Ottawa’s factum is on much firmer ground in asking the Supreme Court to explicitly allow for judges to declare whether legislation preemptively shielded by the notwithstanding clause violates the Charter. Such a declaration will help to inform voters. It should be part of the process of holding governments to account for using the notwithstanding clause, and ideally a deterrent.
Ottawa defends Supreme Court submission proposing notwithstanding clause limits
But it would be a grave error for the Supreme Court to accede to the government’s urging and simply conjure up limits on the clause meant to limit its own powers.
As for the Liberals, it is abundantly clear that politics, not law, are at work. Witness Sean Fraser, as Attorney-General, take the unusual step of issuing a press release on Thursday, trumpeting that “Canadians can count on the Government of Canada... to stand up for the Charter that protects them.”
There may be good arguments to constrain and thereby contain the use of the notwithstanding clause. If so, the Liberals should have the backbone to make that case to Canadians rather than preen in press releases.