Ottawa argues for limits on use of notwithstanding clause in challenge to Quebec secularism law

OTTAWA — There should be limits on the use of the notwithstanding clause that is being increasingly invoked by provinces to curtail people’s Charter rights, argues the federal government in response to the challenge of Quebec’s secularism law at the Supreme Court.

In its first legal intervention in the lengthy challenge of Quebec’s controversial law, the federal government argued in submissions filed Wednesday that the Supreme Court should set out limits of Section 33 of the Charter of Rights, known as the notwithstanding clause .

The clause allows a government to override certain Charter rights for up to five years, at which point the use of the power must be reviewed.

If accepted by Canada’s top court, the government’s proposal could create the first ever substantive limit to the use of the increasingly popular notwithstanding clause.

The argument puts the federal government in direct opposition with Quebec, Ontario and Alberta, which have all argued against limits on the use of the notwithstanding clause.

In its submissions, Ottawa argued that the notwithstanding clause should not be allowed to be used so repeatedly that the rights it suspends are irreversibly damaged.

“The temporary character of the use of s. 33 confirms that it cannot be used to cause an irreparable impairment of the rights and freedoms,” the government argued in its factum. To do so would be akin to an “unauthorized” constitutional amendment, it added.

“The constitutional limits of the s. 33 power preclude it from being used to distort or annihilate the rights and freedoms guaranteed by the Charter, or to reduce them to des peaux de chagrin, that is, to shrivel them beyond recognition, if not transform them into mere legal fictions,” reads the submission.

The government also argued that the notwithstanding clause cannot suspend Charter rights beyond explicitly spelled out in section 33.

Furthermore, Ottawa argued that courts still have the power to decide if a law violates Charter rights even if it includes the notwithstanding clause.

In its submissions, the government said that a decision by the court, even if it cannot strike the law down, serves to inform citizens and legislators about the impact of legislation,

“The right of citizens to vote includes the right to be ‘reasonably informed’,” reads the factum.

The factum was filed as part of a constitutional challenge of Quebec’s secularism law, known colloquially as Bill 21, is a flagship law passed by François Legault’s government in 2019

The law prohibits certain public sector workers, such as judges, police officers, teachers and prison guards, from wearing religious symbols at work and requires them to perform their duties with their faces uncovered.

However, the government has used the notwithstanding clause of the constitution to shield the law from the courts. Every five years, this provision must be renewed by Quebec’s legislature. It was renewed last year.

Interestingly, the Carney government explicitly declines to take a position on the constitutionality of Quebec’s controversial secularism law in its filing.

Former Prime Minister Justin Trudeau said in 2021 that he was “deeply” opposed to the Quebec bill though his government would not get involved until a Charter challenge reached the Supreme Court of Canada.

The Supreme Court has not yet set a date for the appeal hearings. The case is exceptional in that the top court has allowed a record number of intervenors to plead their case.

Last year, Quebec’s Court of Appeal ruled that Bill 21 was comprehensively shielded by the Legault government’s pre-emptive invocation of the notwithstanding clause.

National Post, with files from Antoine Trépanier.

cnardi@postmedia.com

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