Prime Minister Mark Carney and Justice Minister Sean Fraser have requested the Supreme Court to reconsider a significant 1988 ruling regarding the interpretation of the notwithstanding clause, known as Section 33 of the Charter of Rights and Freedoms. This clause allows governments to bypass certain Charter rights for five-year periods. The request comes amid ongoing debates about the implications of this clause, particularly in relation to Quebec's Bill 21, which prohibits certain civil servants from wearing religious symbols while on duty.

The government’s intervention in this case raises concerns about a potential constitutional crisis. If the federal government asserts that Quebec cannot limit minority rights, it could lead to a standoff where Quebec might disregard federal directives. Bill 21 has been in effect since 2019 and has faced numerous legal challenges.

Supporters of the government's position argue that the intervention is not intended to undermine the existing law but rather to prompt the Supreme Court to clarify its authority regarding the constitutionality of legislation. The government does not take a stance on the constitutionality of Bill 21 itself. Instead, it suggests that the Supreme Court might have the power to rule on the constitutionality of laws, which could delay the enforcement of such laws regardless of the court's final decision.

The government’s filing emphasizes that repeated use of the notwithstanding clause could effectively nullify certain rights over time. It states, "The prolonged impossibility of exercising a right or freedom would, in practice, be tantamount to denying its very existence."

While the government could have taken a more aggressive approach by seeking to prohibit the pre-emptive use of the notwithstanding clause, it has chosen a more measured path. The notion that provinces have increasingly invoked Section 33 has gained traction, but the government’s filing notes that this practice has existed since the clause was introduced. Although provinces have used the clause more frequently in recent years, particularly in the 2020s, the historical context shows that Quebec has a long history of applying Section 33 to limit rights.

The government’s concerns about rights being eroded are not unfounded. Quebec's initial use of the notwithstanding clause in the 1980s led to significant limitations on anglophone rights, resulting in a notable exodus of people and resources from the province. This historical backdrop highlights the ongoing tension between provincial rights and federal oversight, particularly in the context of language and cultural identity in Quebec.