Five provincial premiers are urging the federal government to retract its recent proposal for restrictions on the notwithstanding clause, arguing that it undermines the original agreement that led to the creation of the Charter of Rights and Freedoms. The notwithstanding clause allows provincial legislatures or Parliament to pass laws that override certain provisions of the Charter, but only for a temporary period of five years.
In a submission made to the Supreme Court of Canada regarding Quebec’s secularism law, Ottawa contends that the constitutional constraints on the notwithstanding clause prohibit its use to distort or eliminate the rights and freedoms guaranteed by the Charter. The federal government asserts that the temporary nature of the notwithstanding clause prevents it from causing irreparable harm to Charter rights, stating that any such use would amount to an indirect amendment of the Constitution, thereby necessitating judicial review.
In a joint letter addressed to Prime Minister Mark Carney, the premiers of Ontario, Quebec, Alberta, Saskatchewan, and Nova Scotia are urging the federal government to reconsider its stance and withdraw its legal argument. They argue that Ottawa’s position introduces new constraints on the authority of elected legislatures to utilize the notwithstanding clause and proposes an ambiguous legal standard not grounded in the Constitution’s text.
The premiers express concerns that the federal government’s position poses a threat to national unity by undermining the sovereignty of provincial legislatures, a matter they plan to raise with the Council of the Federation due to its significant implications for Canadian federalism. They assert that Ottawa’s position directly challenges the foundational principles of federalism and democracy.
The Attorney General of Quebec is the respondent in the ongoing Supreme Court case, with several other provinces participating as interveners. The Justice Minister emphasized that the court’s ruling will have long-term implications on how both federal and provincial governments can employ the notwithstanding clause.
Ontario’s submission to the Supreme Court highlights the essential role of the notwithstanding clause in Canada’s constitutional democracy, emphasizing that it allows elected representatives to prioritize laws in the public interest over certain Charter provisions for a limited duration. Ontario contends that the notwithstanding clause should not be viewed as a flaw requiring judicial reinterpretation.
Ontario Premier Doug Ford criticized the federal government’s stance, specifically targeting Justice Minister Sean Fraser and Prime Minister Mark Carney. Ford condemned the federal position as disastrous, emphasizing the supremacy of legislatures over judicial interference in matters that he believes should not be subject to court scrutiny.