Commonwealth_ The federal government is calling on the Supreme Court to set clear limits on the use by provincial governments of the notwithstanding clause to the Charter of Rights and Freedoms. Ottawa‘s request was submitted in a factum, or written legal argument, as the Court considers the latest high-profile case on the Quebec secularism bill, which is more commonly referred to as Bill 21.
Bill 21, enacted in 2019, forbids certain public sector employees in leadership roles, like judges and educators, from wearing religious symbols at work. Quebec invoked the notwithstanding clause to shield the legislation from constitutional attack because it gives legislatures the authority to bypass certain Charter rights. Ottawa wishes for the nation’s top court to impose limits on when and how the law can be enforced. The government thinks that using the notwithstanding clause too often and in advance goes against the purpose of the Charter, creating a situation where freedoms and rights can be put on hold for a long time. It is its view that this amounts to a de facto indirect constitutional amendment leading to permanent incapacitation of fundamental rights.
Ontario and Alberta intervened in the proceeding in support of the provincial invocation of the notwithstanding clause. The two provinces are arguing that the clause, constitutionally known as Section 33 of the Charter, is a legitimate constitutional element that is needed to permit legislative supremacy in the Canadian federal state. They think that without Section 33, there would not have been a constitutional deal back in 1982. They view the clause as a negotiated agreement that continues to balance federal jurisdiction with provincial powers today.
In spite of Ontario fighting a principle on behalf of Section 33, the province itself has dissociated from Quebec’s secularism bill. Ontario suggests it would not like to see a trend where citizens are asked to surrender religious symbols either when accessing or delivering services to the public. Ontario does say, however, that this is a decision for the Quebec National Assembly and, by implication, the people of Quebec, not federal governments or other provinces, but not Quebec. Alberta has previously taken a similar stance, asserting that any attempt to limit the pre-emptive invocation of Section 33 would amount to a covert constitutional amendment.
Various parties brought a constitutional challenge against Bill 21 before the Supreme Court. In the view of the appellants, the Court should restrict the use of the notwithstanding clause, particularly if it would be used anticipatorily before legislation would even reach constitutional challenge. There are other people who believe that even where there is a trigger on the clause, the courts would still be entitled to review such legislation. Ontario and Alberta don’t agree. Ontario thinks that prohibiting the pre-emptive use would entail unnecessary delays, with bills pending for years while new bills are proposed and discussed. Alberta also contends that it would politicise the courts and not have them as a neutral umpire by having the courts make non-binding declarations on bills under Section 33.
Notwithstanding, clause use has been more extensive since Quebec enacted Bill 21. In 2023, the Saskatchewan government invoked Section 33 to enact a bill forcing parental consent from students under 16 to use their own pronouns or names at school. Quebec has invoked the clause on other controversial legislation, including a broad overhaul of its language law.
The Supreme Court case is garnering wide attention, and there are many intervenors placing opposing positions on the case, comprising several of the provincial governments. Essentially, the case involves simple questions of federal-provincial division of powers, legislative supremacy, and enforcement of individual rights under the Charter.
For Ottawa, this case is a chance to clarify judicial review and prevent provinces from indefinitely suspending Charter rights by constantly using Section 33. For Ontario and Alberta and the other provinces, the issue is about maintaining provincial autonomy and respecting the compromise that made the Constitution possible.
The final ruling of the Court will have seismic implications for the future of Canadian constitutional law. Not only will it determine the fate of Quebec’s Bill 21, but it will also establish a precedent for the degree to which governments can use preemptive covering legislation to strangle constitutional challenges. As increasingly more provinces have voted to invoke Section 33 with increasing frequency in the last few decades, the ruling will balance provincial sovereignty and individual rights for generations to come.
