Manitoba has filed its intervention in the Supreme Court fight over Quebec’s controversial secularism law, arguing that courts across Canada should be able to issue opinions on whether other jurisdictions’ laws — including those that use the notwithstanding clause — violate the rights of Canadians.
Courts should be able to declare whether laws like Quebec’s Bill 21 violate the Canadian Charter of Rights and Freedoms, even if Section 33 — commonly known as the notwithstanding clause — allows governments to override certain protected rights, Manitoba’s attorney general argued in a legal factum submitted to the Supreme Court of Canada on Tuesday.
The Supreme Court has agreed to hear a legal challenge of Bill 21 brought by several groups that oppose the Quebec law, though a date for a hearing has not been set.
There are dozens of interveners in the Supreme Court case, including several provinces — Manitoba among them.
Bill 21, which was passed in 2019, bans public-service workers, including teachers and judges, from wearing visible religious symbols while on the job.
That province’s government used the notwithstanding clause to shield the bill from court challenges. Section 33 allows Canadian Parliament and legislatures to pass legislation that overrides some sections of the Charter for a five-year term.
It can’t be used to override democratic rights, but it can quash sections related to fundamental freedoms, legal rights and equality rights, including the right to freedom of religion under Section 2.
When the Charter was enshrined in 1982, some premiers worried that it would be too powerful and upset the balance of power between the federal and provincial governments. The notwithstanding clause was created to ensure these governments maintained supremacy over the courts.
Former Ontario premier Bill Davis, who was in power when the clause was first written, told TVO in 2018 that it was intended to be used in “exceptionally rare circumstances.”
Manitoba’s government is intervening in the Supreme Court case to “protect our province’s interests,” said Premier Wab Kinew.
“Freedom of religion is so important to Manitobans,” he said during an unrelated news conference at a Sikh place of worship in Winnipeg on Thursday.
“Even though Quebec is using the notwithstanding clause, a court should still be allowed to decide whether a government should be able to ban a Sikh person from wearing a turban, or whether a government should be allowed to ban a Christian wearing a cross or a crucifix,” he said.
‘Standing up for democracy’: Kinew
While the notwithstanding clause can protect governments from constitutional challenges, Kinew said voters should know whether independent judges believe a piece of legislation violates Charter rights — even if the courts don’t have the power to strike it down.
“When you go to vote in the election, you should know if the expert judges believe that, outside of the notwithstanding clause, the actions of your government should be considered constitutional or not,” Kinew said.
“We are intervening” in the Supreme Court case, he said. “We’re standing up for Manitobans, but more importantly, we’re standing up for democracy.”
In its legal filing, the Manitoba government argues that allowing judges to weigh in on legislation in the public interest would foster “a healthy dialogue” between different levels of government, potentially informing future political decisions.
“In addition to furthering the ‘dialogue’ between branches of governance, judicial commentary can serve the valuable function of providing voters with reliable and impartial information about the effect of the legislation in question on Charter rights,” the province wrote in its court filing.
Manitoba’s formal intervention came just ahead of similar filings by the federal government and the government of British Columbia, submitted to the Supreme Court on Wednesday.
The federal government urged the Supreme Court to set limits around how provincial governments can use the notwithstanding clause, arguing that repeated use of the provision would cause irreparable damage to Canadians’ rights.
Alberta, Ontario and Saskatchewan — all of whom are interveners, and whose governments have all used the notwithstanding clause — submitted filings supporting Quebec’s position on Wednesday.
The federal government has never invoked the notwithstanding clause, according to the Department of Justice.
Manitoba said in 2022 it would intervene in any Supreme Court fight over Bill 21, with then justice minister Kelvin Goertzen saying a ruling from the high court would set a precedent on religious freedom across Canada. That same year, then Winnipeg mayor Brian Bowman pledged $20,000 to the legal fight against the bill.
In 2019, then premier Brian Pallister’s government took out ads in Quebec newspapers encouraging anyone impacted by Bill 21 to move to Manitoba.
