Ongoing debates at the Supreme Court regarding Quebec’s secularism law, Bill 21, have highlighted a national disagreement on the role of courts in interpreting the notwithstanding clause. Bill 21 prohibits certain public employees, such as teachers, from wearing religious symbols while on duty. Quebec proactively invoked the notwithstanding clause when enacting the law to shield it from legal challenges. This clause, found in Section 33 of the Charter of Rights and Freedoms, permits provinces to pass laws that may infringe on specific Charter rights.
During the Supreme Court proceedings, the federal government, in conjunction with Manitoba and British Columbia, contended that even when the notwithstanding clause is invoked preemptively, courts should still have the authority to provide non-binding opinions on the law’s compliance with the Charter, although these opinions would lack the power to invalidate the law. On the opposing side, Quebec, Alberta, and Ontario strongly opposed this stance.
The division between provinces was evident during the court session held on Wednesday, with Ontario advocating that courts should abstain from assessing the constitutionality of a law once Section 33 has been invoked. Conversely, Deborah Carlson, representing Manitoba’s attorney general, argued that post-enactment judicial review should not be precluded by Section 33.
Critics challenging Bill 21 in court argue that the notwithstanding clause was not intended for preemptive use. They stress the importance of courts identifying Charter rights violations before a province invokes the clause. Quebec’s primary defense is that the Charter does not explicitly prohibit preemptive invocation of the notwithstanding clause, a stance upheld by lower courts.
Support for allowing courts to offer non-binding rulings on laws using the notwithstanding clause comes from the federal government, Manitoba, and British Columbia. They believe such judgments could enhance public understanding of how governments utilize the notwithstanding clause. While some justices questioned the potential political implications of court involvement, proponents argued that courts play a vital role in examining constitutional issues impartially.
Ontario, supported by Alberta and Saskatchewan, concurred with Quebec’s perspective, arguing that non-binding court rulings would serve no practical purpose and could create confusion. They emphasized that engaging in lengthy legal battles for non-binding outcomes would be counterproductive. The legal proceedings are ongoing, with various groups presenting arguments, and a final decision expected in the coming months.