OTTAWA — The federal government has submitted a brief to the Supreme Court, marking its first legal intervention in the ongoing challenge to Quebec's secularism law, known as Bill 21. This submission, spanning about 20 pages, argues for limits on the use of the notwithstanding clause, a contentious section of the Charter of Rights that allows governments to override specific rights for up to five years.

Federal Justice Minister Sean Fraser stated, "This case is about more than the immediate issues before the Court. The Supreme Court’s decision will shape how both federal and provincial governments may use the notwithstanding clause for years to come." The federal government's stance has sparked backlash from several provinces, which argue that the courts should not restrict their ability to invoke this clause.

Quebec Premier François Legault criticized the federal government as "hypocritical," while his justice minister accused Ottawa of attacking provincial legislatures. Alberta Premier Danielle Smith expressed her disappointment, stating that the federal government risks national unity by challenging a foundational principle of the constitution. She urged Ottawa to withdraw its appeal to the Supreme Court.

Ontario’s Attorney General Doug Downey and Saskatchewan Premier Scott Moe echoed these sentiments, claiming that Ottawa's arguments attempt to rewrite the Charter through judicial means. The core of the dispute centers on the extent of judicial power to limit or review the use of the notwithstanding clause.

The case arises as more provinces, including Ontario and Alberta, begin to invoke the notwithstanding clause in controversial legislation. Quebec's Bill 21 prohibits certain public sector workers, such as judges and teachers, from wearing religious symbols and mandates that they perform their duties with their faces uncovered. Quebec invoked the notwithstanding clause to protect this law from judicial review, renewing it last year.

Ontario Premier Doug Ford has used the clause twice since 2018, most recently in 2022 regarding back-to-work legislation for striking teachers, which was later rescinded due to union backlash. Alberta is also expected to invoke the clause in upcoming bills related to transgender rights.

Legal analysts are questioning whether the Supreme Court will accept the federal government's proposal to grant courts more authority to interpret and potentially limit the notwithstanding clause. Advocates against Bill 21 argue that the clause has been used excessively, moving beyond its intended purpose as a "safety valve" for rare and non-controversial issues.

The federal government contends that lawmakers should not be able to repeatedly renew laws that restrict Charter rights to the point where those rights become "mere legal fictions." They illustrate this with an analogy about a lightbulb: if a lightbulb is turned off for a short time, it will shine brightly when turned back on, but if it remains off for extended periods, it may never illuminate again.

Ottawa also argues that courts should retain the authority to assess whether a law violates Charter rights, even if it includes the notwithstanding clause. This perspective aims to inform citizens and legislators about the implications of legislation.

In contrast, Quebec's government cites a 2005 Supreme Court ruling, asserting that "only electors can debate the wisdom and value of legislative decisions." They argue that the notwithstanding clause is a cornerstone of the Charter, ensuring legislative supremacy over judicial review. Manitoba's government has also supported the notion that elected representatives should have the final say on certain rights and freedoms through the notwithstanding clause, while agreeing that courts should still evaluate potential violations of Charter rights.

The case has garnered significant attention, with the Supreme Court approving a record number of interveners this summer. The highly anticipated hearings have yet to be scheduled. Observers have raised concerns about a potential constitutional crisis if the Supreme Court sides with the federal government. If the court limits the application of section 33, it remains uncertain whether provinces will comply with the ruling.