Five premiers say Ottawa must withdraw its recent call for limits on the notwithstanding clause because it amounts to a “complete disavowal” of the bargain that spawned the Charter of Rights and Freedoms.
The Constitution’s notwithstanding clause gives provincial legislatures or Parliament the ability to pass legislation that effectively overrides provisions of the Charter, though only for a five-year period.
In a filing submitted last month to the Supreme Court of Canada in a case on Quebec’s secularism law, Ottawa argues the constitutional limits on the notwithstanding clause preclude using it to distort or wipe out the rights and freedoms guaranteed by the Charter.
The federal submission says the “temporary character” of the notwithstanding clause confirms that it cannot be used to cause “an irreparable impairment” of Charter rights.
It adds that since any such use would “amount to indirectly amending the Constitution,” it follows that the courts must retain jurisdiction to decide whether a legislature’s use of the clause violates this limit.
In a letter sent Tuesday to Prime Minister Mark Carney, the premiers of Ontario, Quebec, Alberta, Saskatchewan and Nova Scotia call on the federal government to reconsider its approach “and withdraw its written legal argument immediately.”
The letter says the federal arguments seek to advance novel limits on the ability of democratically elected legislatures to use the notwithstanding clause.
Ottawa’s submission also “proposes an unclear and unworkable legal standard with no basis in the text of the Constitution,” the letter says.
“Put simply, the federal government’s arguments represent a complete disavowal of the constitutional bargain that brought the Charter into being,” the letter says.
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It argues these arguments threaten national unity by seeking to undermine the sovereignty of provincial legislatures — “a fact we will raise for the consideration of the full Council of the Federation given the fundamental implications for Canadian federalism.”
“Indeed, the federal government’s position amounts to a direct attack on the foundational constitutional principles of federalism and democracy,” the letter adds.
The attorney general of Quebec is the respondent in the Supreme Court case in question, and the attorneys general of Canada, Ontario, Manitoba, British Columbia, Saskatchewan and Alberta are taking part as interveners.
In a Sept. 18 statement about the federal intervention, Justice Minister Sean Fraser, who is also attorney general, said the 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,” he said.
In its submission to the Supreme Court in the case, the Ontario government says the notwithstanding clause is “fundamentally important to Canada’s constitutional democracy.”
The clause preserves the ability of democratically elected representatives to decide that certain laws are sufficiently important to the public interest that they must operate notwithstanding certain Charter provisions for a limited period of time, the submission adds.
Ontario also says the notwithstanding clause is not “a defect to be corrected or mitigated by judicial reinterpretation.”
Speaking to reporters last month, Ontario Premier Doug Ford singled out Fraser and Carney as he denounced the federal position.
Ford called it “the worst decision” Carney has ever made, adding it “will be an absolute disaster.”
Ford, whose Progressive Conservative government has used the notwithstanding clause on more than one occasion, said legislatures are supreme, “not judges ruling on stuff that shouldn’t even be in front of the courts.”
