No limits on notwithstanding clause, Quebec government argues

OTTAWA — There should be no new limits on the use of the notwithstanding clause even if a “tyrant” could one day take power and use it to run roughshod on fundamental rights, the Quebec government told Canada’s top court amid a challenge to Quebec’s secularism law.

“It is not the role of the court to decide a political question that is not justiciable,” lawyer Isabelle Brunet, who represents Quebec’s attorney general, told the Supreme Court of Canada (SCC) in French on Tuesday.

On the second of four days of hearings, proponents of Quebec’s controversial secularism law — colloquially known as Bill 21 — told the SCC that invoking the notwithstanding clause is entirely in a province’s right and cannot, nor should not, be reviewed by a court.

Bill 21 prohibits certain Quebec 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.

To pass his flagship bill in 2019, Quebec Premier François Legault invoked section 33 of the Charter of Rights and Freedoms, 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.

Though focused on Bill 21, the case is about whether there should be limits to a province’s power to invoke the notwithstanding clause, a cornerstone of the Charter that convinced most provinces to sign on to the document in 1982.

Arguing at the Supreme Court Tuesday, Lawyers for Quebec’s attorney general rejected any such limits, which are supported by many opponents of Bill 21 as well as the federal government.

On the first of four days of hearings over Bill 21, six groups opposing the province’s secularism law told the Supreme Court of Canada (SCC) that it violated a litany of Charter rights, including religious and language freedoms, multiculturalism and gender equality.

One group argued that it was necessary for the court to reinterpret the clause because it would allow for a “mini-Trump” to do anything that is currently happening in the United States legally in Canada.

When asked by Chief Justice Richard Wagner to respond to assertions that a “tyrant” could invoke section 33 to run roughshod on fundamental rights, Brunet responded that she trusts the system.

“We must have confidence in our democracy,” she said.

“We must also presume that the government will govern itself according to the public good, we cannot assume the contrary,” she added.

The clause can be invoked pre-emptively to prevent any Charter challenge of a law, Brunet argued, and there is no limit to the number of times it can be renewed for five years.

“There is nothing that prevents that” in the text of the Constitution, she told the court.

The question that drew the most attention from the SCC justices on Tuesday was whether a court can rule if a law complies with the Charter of Rights even if a government invokes the notwithstanding clause.

The “judicial declaration” would have no legal bearing on the law but would serve to inform debate on the legislation in question, say advocates of the proposal. Those include the federal government as well as many opponents of Bill 21.

Absolutely not, said the Quebec government, arguing that invoking section 33 automatically shields legislation from review of Charter rights suspended through the notwithstanding clause.

To allow such judicial declaration “renders section 33 meaningless,” Brunet told the court. “And ultimately, it amounts to doing indirectly what cannot be done directly.”

Some courts, such as the King’s Bench of Saskatchewan in 2024 , have ruled that courts can still issue a judicial declaration determining if a law violates Charter rights or not even if the legislature invoked the notwithstanding clause.

But in its decision on Bill 21, the Quebec Court of Appeal found in 2024 that the notwithstanding clause completely shielded Bill 21 from judicial review, essentially stating that invoking section 33 of the Charter puts an end to any potential Charter analysis.

In a question to Brunet, Justice Nicholas Kasirer suggested he thought the Quebec Court of Appeal had gone too far.

Section 33 is “not an ouster clause” (which explicitly exempts legislation from judicial review) and to describe it as such is a bit of an exaggeration, he suggested to Brunet.

Much like the first day of hearings, the three judges from Quebec (Wagner, Kasirer and Suzanne Côté) and Malcolm Rowe from Newfoundland and Labrador were the only ones who engaged with counsel.

Christiane Pelchat, the lawyer for secularism advocacy group Pour Les Droits Des Femmes Du Québec, argued that Muslim religious symbols such as the hijab or the burka are “symbols of inferiority”

“We must stop demonizing this law,” Pelchat said of Bill 21 as she argued that many monotheistic religions are behind decades of discrimination against women in Quebec society.

Hearings are scheduled for three hours daily over four days from Monday to Thursday, making it one of the longest cases ever heard by the SCC. It also involves over 40 appellants, respondents and intervenors, the most in the Court’s 150-year history.

The Court is sitting as a panel of seven judges since Justice Mahmud Jamal recused himself from the case last year following a request from the Quebec government.

To maintain an odd-numbered bench, Justice Mary Moreau — the most junior judge on the SCC — is also absent from them bench.

Hours before the day’s hearings on Quebec’s secularism law, Prime Minister Mark Carney — a devout Catholic — delivered a speech and participated in the annual National Prayer Breakfast in Ottawa.

National Post

cnardi@postmedia.com

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