Supreme Court Hears Bill 21 Challenge: Ottawa and Quebec Clash Over Charter Override Limits
As the Supreme Court of Canada convened to hear a challenge to Quebec's secularism law, Bill 21, the federal government emphasized that the Constitution's notwithstanding clause, while granting legislatures broad power to override charter rights, is not without limits. Lawyers for Ottawa argued that judges must retain the ability to determine when rights have been infringed, even when the clause is invoked.
Federal Position on Charter Rights
Guy J. Pratte, representing the federal government, stated that the Canadian Charter of Rights and Freedoms continues to exist despite the use of the notwithstanding clause. He stressed that citizens have the right to know from the courts what is happening regarding their rights. However, Ottawa did not take a stance on the constitutionality of Bill 21 itself, which prohibits certain public employees from wearing religious symbols at work.
Provincial Divisions on the Override Provision
The federal position contrasts sharply with that of Quebec and some other provinces, which assert that the Constitution intentionally provides legislatures with extensive leeway to use the notwithstanding clause. Lawyers for Manitoba and British Columbia supported the idea that courts should review and clarify the effects of laws under the clause. In contrast, Ontario, Alberta, and Saskatchewan defended the clause as a key compromise from the 1982 patriation of the Constitution, arguing it allows provinces to protect regional differences.
Arguments for Judicial Restraint
Doug Downey, a lawyer for the Ontario government, contended that those seeking limits on the clause are asking the court to create what should have been agreed upon in 1982, describing it as an alternative universe. He emphasized that any new restrictions should come through a formal constitutional amendment, not a judicial ruling. These provinces also argued that the Supreme Court should avoid ruling on hypothetical charter violations, warning that doing so would shift too much power to judges and away from legislatures and voters.
The hearing highlights ongoing tensions between federal and provincial authorities over the balance of power in Canada's constitutional framework, with implications for future uses of the notwithstanding clause in legislation.
