Premiers unite against Carney’s notwithstanding clause bid

Five provincial premiers are up in arms, demanding Prime Minister Mark Carney withdraw his government’s Supreme Court submission to limit the notwithstanding clause.

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Five provincial premiers are up in arms, demanding Prime Minister Mark Carney withdraw his government’s Supreme Court submission to limit the notwithstanding clause.

The premiers call the submission an unprecedented assault on parliamentary sovereignty, provincial rights, and democracy.

In a joint letter dated Tuesday, Alberta’s Danielle Smith, Quebec’s François Legault, Saskatchewan’s Scott Moe, Nova Scotia’s Tim Houston, and Ontario’s Doug Ford accused the federal government of attempting to rewrite the Constitution through the courts.

“We write jointly to express our profound disappointment with the content of the federal government’s factum in this appeal,” the premiers said. “The Attorney General of Canada’s submissions seek to advance never-before-seen limits on the ability of democratically elected legislatures to use the notwithstanding clause.”

The letter follows Ottawa’s intervention in English Montreal School Board v. Attorney General of Quebec, a case involving Quebec’s 2019 secularism law, Bill 21.

Justice Minister Sean Fraser confirmed last month that the federal factum asks the court to limit when provinces may invoke Section 33 of the Charter, arguing repeated use amounts to “indirectly amending the Constitution.”

“This case is about more than the immediate issues before the Court. The Supreme Court’s decision will shape how both federal and provincial governments may use the notwithstanding clause for years to come,” said Fraser.

The premiers’ letter called the Liberals’ stance “a complete disavowal of the constitutional bargain that brought the Charter into being.”

“These arguments threaten national unity by seeking to undermine the sovereignty of provincial legislatures, a fact we will raise for the consideration of the full Council of the Federation, given the fundamental implications for Canadian federalism,” pledged the premiers.

The five premiers asked the federal government to immediately withdraw its written argument.

Saskatchewan Premier Scott Moe previously said that the federal position marked “a significant infringement on the autonomy of provinces and their elected legislatures.”

“The notwithstanding clause is part of the constitution that Premiers like Alberta’s Peter Lougheed and Saskatchewan’s Allan Blakeney fought to have included, because they understood that when there is a ‘collision of rights,’ the will of the duly elected legislature, not the courts, should prevail,” wrote Moe.

Alberta Premier Danielle Smith likewise previously warned that Ottawa’s approach risked “national unity and a foundational principle of our constitution.”

“While the Alberta government does not support the content of Quebec’s Bill 21, we stand shoulder to shoulder with Quebec’s constitutional right to invoke the Notwithstanding Clause as its government deems fit,” she said.

Legal experts have also cautioned that limiting Section 33 would “upend the constitution.”

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

Former Alberta premier Jason Kenney previously called the federal move “strange and dangerous,” warning it could deepen divisions within the federation.

“The provinces only signed on to the repatriation of the Constitution, including the Charter of Rights, back in 1982, because they included the Section 33 notwithstanding clause,” said Kenney. “Carney has no democratic mandate to pursue it, and I think it’s going to be very divisive in the federation.”

The premiers’ intervention is the most coordinated pushback yet against the Carney government’s bid to redefine how provinces may use one of the Charter’s most contentious powers.