National divide emerges over notwithstanding clause at Supreme Court hearings on Bill 21

Ongoing arguments in the Supreme Court challenge to Quebec’s secularism law, Bill 21, have exposed a national divide over the role of courts in interpreting the notwithstanding clause.

Bill 21 prevents some civil servants, including teachers, from wearing religious symbols at work.

Quebec invoked the notwithstanding clause pre-emptively when it drafted the law, in an attempt to shield it from court challenges.

The clause – Section 33 of the Charter of Rights and Freedoms – allows provinces to adopt legislation even if that legislation violates certain Charter rights.

At the Supreme Court Wednesday, the federal government — along with Manitoba and B.C. — argued even when the clause is invoked pre-emptively, courts should still have the right to issue non-binding judgments as to whether a law violates the Charter — even if those judgments have no legal power to strike down the law.

Quebec, along with Alberta and Ontario, vigorously oppose that idea.

This national split played out in real time in court arguments Wednesday.

“Ontario's position is that once Section 33 has been invoked, courts should not provide opinions on whether the law would have been constitutional if that invocation had not been made,” Doug Downey, Ontario’s attorney general, told the court.

Deborah Carlson, lawyer for the attorney general of Manitoba, countered that position in her presentation to the court.

“There is nothing in Section 33 that precludes post-enactment judicial scrutiny,” she said.

Groups challenging Bill 21 in court have argued that the notwithstanding clause was never meant to be used pre-emptively.

Traditionally, in cases where the clause has been invoked, provincial governments have passed a law, the law is challenged in court, the court strikes down the law ruling it unconstitutional, and only at that point would a province invoke the clause. 

Opponents of Bill 21 say it’s fundamental that courts identify which Charter rights are being violated before provinces can invoke the clause.

Quebec’s main argument against that is that there’s nothing written in the Charter that says the clause can’t be invoked pre-emptively.