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 English Montreal School Board v. Attorney General of Quebec case. Fraser clarified that their intention was not to alter the Constitution but to seek clarification from the Supreme Court.
The case involves a challenge to Quebec’s Bill 21, which utilizes the notwithstanding clause. This move is part of a trend where elected officials have increasingly resorted to this clause to bypass Charter rights. The federal government’s involvement was anticipated, given their previous commitment to intervene in such cases.
The arguments presented by the federal government have sparked differing opinions. Some view them as cautious, while others see them as daring. The Bloc Québécois even proposed a motion in the House of Commons urging the withdrawal of the federal submission.
The federal submission raises two key arguments regarding the notwithstanding clause. Firstly, it questions whether the clause should result in the permanent infringement of Charter rights. Secondly, it argues that judicial review can still occur despite the clause being invoked, providing valuable guidance and information to legislators and the public.
Provinces are divided on the issue, with some supporting judicial oversight for accountability, while others believe it undermines the legislative intent of the notwithstanding clause. The Supreme Court’s decision on the Bill 21 case will have significant implications for the future interpretation and application of the notwithstanding clause.
In the midst of these legal debates, there is a Senate bill, S-218, proposed to regulate the use of the notwithstanding clause at the federal level. This bill aims to prevent preemptive use of the clause, require a supermajority vote in Parliament for affected bills, and increase transparency and accountability in the legislative process.
Ultimately, while the Supreme Court’s ruling will provide legal clarity, the responsibility of addressing concerns related to the notwithstanding clause may largely rest with legislatures to uphold democratic principles and accountability.
