Title: Supreme Court Case on Quebec's Bill 21 Raises Concerns
Justice Minister Sean Fraser has expressed confidence in the federal government's intervention regarding Quebec's Bill 21, which addresses the secular nature of the state. However, this intervention has sparked concerns about its potential implications for Canadian federalism. Fraser aims to reshape how provinces utilize the notwithstanding clause, which allows them to bypass certain constitutional rights. Achieving this goal would require a Supreme Court ruling that effectively acts as a constitutional amendment, a move that could contradict the original intentions of the Constitution's framers.
If the government led by Prime Minister Mark Carney succeeds, it could trigger a significant secession crisis, reminiscent of the tensions surrounding Quebec's independence referendums in the 1980s. During that period, then-Prime Minister Pierre Trudeau promised constitutional reforms following a defeat in the referendum. Quebec's former Premier René Lévesque criticized the proposed Charter, warning that it could lead to judicial overreach. He argued that it was unacceptable for the Supreme Court, which has a majority of non-Quebec English-speaking judges, to override the authority of Quebec's National Assembly.
The Supreme Court's ruling in the Patriation Reference reinforced Lévesque's concerns by granting the federal government unilateral power to request constitutional amendments. In response to potential secession crises, then-Justice Minister Jean Chrétien included the notwithstanding clause in the new constitutional framework, acknowledging its importance in maintaining a balance of power. Alberta's former Premier Peter Lougheed noted that this clause allows legislators to take action against judicial decisions when there is reasonable disagreement on public policy.
While Lougheed's government did not invoke the notwithstanding clause, Quebec's government frequently did, using it to protect its policy decisions. Over the past 40 years, the Supreme Court has shown restraint regarding the limits of Section 33, addressing it only once in the Ford v. Quebec case. The Court ruled that as long as the language specified in the Charter was followed, challenges to the use of the notwithstanding clause could not be heard.
Currently, the Carney government's arguments in the Supreme Court case regarding Bill 21 suggest that any significant impairment of rights could be seen as an unauthorized constitutional amendment. This interpretation could lead to a reevaluation of the Ford decision, allowing for greater scrutiny of the notwithstanding clause.
Fraser's justification for this intervention looks ahead to the future, but it may overlook critical political developments. The potential election of a Parti Québécois government in 2026 and another sovereignty referendum by 2030 could reshape the political landscape. A ruling that overturns Ford might signal to Quebecers and other provinces that the terms of confederation can be altered at the federal government's discretion, particularly when Quebec's policies clash with broader Canadian values.
For the sake of national unity, it is essential for Carney to consider the implications of this intervention. Without a viable notwithstanding clause, the foundation of the Charter and, potentially, the unity of Canada could be at risk. It is not too late for the Prime Minister to reconsider this approach, which could undermine Quebec's concerns about judicial supremacy and its ability to maintain a distinct identity within Canada. The interpretation of the Constitution by the Supreme Court should not become a catalyst for secession.