Liberal bid to limit notwithstanding clause could tear Canada apart: lawyers

Legal experts are warning that the Liberal government’s request for the Supreme Court of Canada to place limits on the Charter’s notwithstanding clause will upend the constitution.

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Legal experts are warning that the Liberal government’s request for the Supreme Court of Canada (SCC) to place limits on the Charter’s notwithstanding clause will upend the constitution and could send the country hurtling towards a crisis.

Justice Minister Sean Fraser has requested the Supreme Court of Canada place limitations on provincial governments as part of Ottawa’s intervention in the legal battle over Quebec’s Bill 21, also known as the secularism law.

“As Attorney General of Canada, I have filed a factum with the Supreme Court of Canada outlining Canada’s position on constitutional issues raised by the use of the notwithstanding clause,” wrote Minister of Justice Sean Fraser in a statement on Thursday.

“The Canadian Charter of Rights and Freedoms is a pillar of our democracy and a reflection of our shared values. It guarantees fundamental freedoms, including freedom of thought, belief, expression, religion, and association.”

Constitutional advocates have pushed back against the federal government, arguing that what the Liberals are suggesting risks upending national unity.

“It’s a surprise and a shock and it could unsettle the constitutional compact,” Josh Dehaas, counsel with the Canadian Constitution Foundation (CCF) told True North.

“Quebec was not happy that the Charter and constitution passed without them in 1982, but the way that Quebec has come to terms with it in a lot of ways is by using the notwithstanding clause and using it repeatedly.”

Public policy advisor Ben Woodfinden called Ottawa’s arguments “outrageous” and said that if the court chooses to entertain them, it will cause “a serious constitutional crisis.”

“The notwithstanding clause exists precisely because most provinces agreed to sign onto the charter with a clause that allowed them to assert their constitutional supremacy over specific sections of the Charter,” wrote Woodfinden on Wednesday.

“It exists precisely because it preserves parliamentary supremacy in a uniquely Canadian context. If the SCC defangs it – expect a deserved constitutional crisis.”

The notwithstanding clause, Section 33 of the Charter, was fundamental to the negotiation of the 1982 Constitution as it preserves the sovereignty and authority of provincial legislatures.

Bill 21 officially declared Quebec a secular state and banned government employees from wearing religious symbols such as hijabs, turbans, or crosses to work. It was first passed in 2019 in the National Assembly of Quebec and later defended from litigation using the notwithstanding clause.

The Supreme Court of Canada agreed to hear an appeal to a lower court decision that upheld the legislation in January. The English Montreal school board, civil liberties, and community groups filed the appeal.

Now, the Liberals want the Supreme Court to set restrictions on when provinces can invoke the notwithstanding clause.

In the federal government’s filing, it argued that repeated invocation of the clause amounts to “indirectly amending the Constitution.”

Additionally, it claims that courts should be able to rule on whether its use could result in the “irreparable impairment” of Canadians’ rights.

“The prolonged impossibility of exercising a right or freedom would, in practice, be tantamount to denying its very existence,” reads the factum submitted on Wednesday.

Dehaas said that if that ability is taken from the province, it could “inflame separatism.”

“I’m concerned about national unity,” he said.

The CCF was granted intervener status in the case in July.

Both Ontario and Alberta defended Quebec’s pre-emptive use of the notwithstanding clause back in 2019.

According to separate filings submitted on Wednesday, the provinces called the clause an essential part of the Constitution and something not to be undermined by the Supreme Court.

Ontario “does not support Quebec’s decision to require citizens to remove religious symbols to serve the public or to receive public services,” wrote Ontario Attorney General Doug Downey on Wednesday. “But that is a decision for the national assembly, and ultimately the voters of Quebec, to make for themselves.”

Meanwhile, Alberta’s factum argued that Section 33 of the Charter was “a hard-fought and hard-won compromise.”

“Simply put, there would have been no Charter without (it),” it said.