New limits on notwithstanding clause would be 'irreparable' attack on federation, Ontario argues

OTTAWA — “Irreparable” attack on federalism or necessary protection of Charter rights?

The two diametrically opposed views on whether the Supreme Court should impose new limits on the invocation of the nothwithstanding clause came to a head Wednesday as five provincial governments and the federal government made their cases during the top court’s hearings on Quebec’s Bill 21.

Taking a position for the first time in the legal battle that began in 2019, the federal government argued that repeat invocations of the clause to suspend people’s Charter rights can have the effect of eliminating them, which was never the intention of the Constitution’s drafters.

But the Ontario government countered that any new limits on the invocation of the controversial clause in the Charter risked causing “serious, irreparable and unpredictable” harm on the Canadian federation.

Quebec’s secularism law, colloquially known as Bill 21, prohibits certain Quebec public sector workers, such as judges, police officers, teachers and prison guards, from wearing religious symbols at work. It also requires them to perform their duties with their faces uncovered.

To pass his 2019 bill, Quebec Premier François Legault invoked section 33 of the Charter of Rights and Freedoms, known as the notwithstanding clause. It allows a government to suspend certain Charter rights for up to five years, at which point the invocation must be reviewed by legislators.

The law as well as the invocation of section 33 were quickly challenged in court, where it was upheld twice before landing at the Supreme Court.

On Monday, the first day of the hearings , six groups opposing the province’s secularism law told the Supreme Court that it violated a litany of Charter rights. One argued that the current view on the notwithstanding clause would also allow a “mini-Trump” to legally run roughshod on Canadians’ rights.

Though centred on Bill 21, the case is about whether there should be limits to a province’s power to invoke the notwithstanding clause, a cornerstone of the Charter that convinced most provinces to sign on to the document in 1982.

The case is the most substantive review of the notwithstanding clause by the top court since its inception as part of the Charter over four decades ago.

On Wednesday, the federal government’s lawyer, Guy J. Pratte, argued that the five-year time limit on the clause effectively meant that the suspension of affected Charter rights was intended to be limited.

“Therefore, section 33, in its mechanic, in its raison d’être, takes for granted that rights continue to exist, that they can be affected, but that they cannot be affected irreparably,” Pratte said.

He then lobbed a question to provinces: if there is no limit to the invocation of section 33, could it be used to shield hypothetical laws that legalize summary executions or slavery?

“It’s not a question of whether (provinces) want to do it, or whether they’re inclined to do it. It’s whether they can do it,” Pratte said.

None of the provincial intervenors Wednesday — Ontario, Saskatchewan, Alberta, British Columbia and Manitoba — responded to the question head on as they argued against the court adding any substantive limits to the use of the notwithstanding clause.

The Government of Ontario — represented by the attorney general himself, Doug Downey — presented the most forceful argument.

Downey said the case is a “generational” test of Canadian federation, going so far as saying that those calling for limits on the notwithstanding clause are endangering the federation.

Section 33 is an important political counterweight to judicial power and allows elected officials to have the final say on laws, he added, echoing arguments made by the Quebec government on Tuesday.

“The arguments advanced today by the appellants would endanger our federation by exacerbating regional alienation and eliminating a vital mechanism for the expression of regional differences,” Downey told the court.

Where the provincial governments diverged in their views was on the courts’ ability to decide if a law invoking the notwithstanding clause still infringes individuals’ Charter rights.

Ontario, Quebec, Saskatchewan and Alberta argued absolutely not because when section 33 is invoked, the impacted Charter rights are suspended for five years and, in practice, disappear. Thus, courts cannot determine if a law breaches rights that do not apply, even temporarily.

Rather, the real test of invocation is in the court of public opinion, they argue.

“A… condemnation delivered while the law continues to operate becomes a judicial grading exercise or an unwarranted advisory opinion without legal effect,” argued Saskatchewan’s lawyer Milad Alishahi.

“Section 33 assumes… that the voters can and will assess their government’s use of the notwithstanding clause,” added Downey.

Manitoba, British Columbia and the federal government argued the opposite: a judicial declaration on the constitutionality of a law invoking the notwithstanding clause would help inform public debate.

The exercise may be “academic” because the decision will have no legal consequence, but it remains an important weighing in by the courts, they said.

“Some say that everyone could weigh in… Elected officials, columnists and academics could all weigh in to determine whether rights had been violated or not,” Pratte, the federal government’s lawyer, said.

“The only ones who would be powerless to intervene would be the judges. The ultimate arbiters would have no say whatsoever.”

Justice Malcolm Rowe appeared skeptical, suggesting that was akin to judges entering the political battlefield.

“Is that a good idea? Is that your advice,” he asked Pratte, who disagreed with the judge.

Chief Justice Richard Wagner also took umbrage with an argument by an organization representing Anglophone groups that they are more affected by Bill 21 because the English-speaking community is more diverse.

“I don’t agree with that. I find those comments almost outrageous,” Wagner said to Quebec Community Group Network lawyer Julius H. Grey. “I don’t think that the English-speaking community in Quebec has the monopoly on diversity.”

The rare rebuke from a Supreme Court justice had Grey scrambling to explain the group’s position.

“I think the English-speaking community has a different view of secularism. I agree with you, the French-speaking community has become totally diverse,” Grey responded.

The case is historic in more ways than one. With four days of hearings, it’s one of the longest cases ever heard by the Supreme Court. It also involves over 60 appellants, respondents and intervenors, the most in the court’s 150-year history.

The court is sitting as a panel of seven judges since Justice Mahmud Jamal recused himself following a request from the Quebec government.

To maintain an odd-numbered bench, Justice Mary Moreau — the most junior judge on the court — is also absent from the bench.

National Post

cnardi@postmedia.com

Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our politics newsletter, First Reading, here.