Last month, the Justice Minister Sean Fraser faced accusations from a Bloc Québécois MP following the federal government’s submission to the Supreme Court in the case involving the English Montreal School Board v. Attorney General of Quebec. Fraser clarified that the intention was not to amend the Constitution but rather seek clarification from the Supreme Court.
The case revolves around Quebec’s Bill 21, which utilizes the notwithstanding clause, a provision allowing lawmakers to override certain rights in the Charter of Rights and Freedoms. The federal government’s involvement in the case was expected, as previously indicated by both Justin Trudeau’s government and his successor, Mark Carney.
The federal submission has sparked varied reactions, with some viewing it as cautious while others perceive it as assertive. The Bloc Québécois even tabled a motion in the House of Commons urging the withdrawal of the federal government’s factum. However, the federal submission avoids challenging the notwithstanding clause preemptively used by legislatures.
The federal government puts forth two key arguments regarding the notwithstanding clause. Firstly, it suggests that the clause’s effect should not lead to irreversible violations of Charter rights, potentially deeming such uses unconstitutional. Secondly, it argues that courts can review notwithstanding clause laws for consistency with Charter rights, providing crucial information to legislators and the public.
These arguments have created a divide among provinces, with some supporting judicial review for accountability while others oppose it, fearing judicial interference in legislative decisions. Ultimately, the Supreme Court’s ruling in the Bill 21 case will shed light on the extent of the notwithstanding clause’s application and the balance between legislative and judicial roles.
Various proposals, including Bill S-218, aim to regulate the use of the notwithstanding clause at the federal level. Despite these efforts, the responsibility of addressing potential abuses of the notwithstanding clause may ultimately rest with legislatures rather than the courts.
This ongoing debate underscores the complexities surrounding the use of the notwithstanding clause and the need for a nuanced approach to balancing legislative authority and Charter rights.
