Five provincial premiers are urging Ottawa to retract its recent legal submission concerning the notwithstanding clause. They argue that the federal position represents a “complete disavowal” of the foundational principles that shaped the Charter of Rights and Freedoms.
Understanding the Notwithstanding Clause
The notwithstanding clause is a constitutional provision that allows provincial legislatures and Parliament to enact laws that override certain rights and freedoms guaranteed by the Charter. However, such legislation can only remain in effect for a maximum of five years.
Ottawa’s Legal Submission
In a case concerning Quebec’s secularism law, Ottawa submitted a filing to the Supreme Court of Canada last month. The federal government argues that constitutional limits on the notwithstanding clause prevent its use from undermining Charter rights and freedoms.
The submission emphasizes that the clause’s “temporary character” was designed to avoid “an irreparable impairment” of such rights. It further posits that any misuse of the clause could be interpreted as an indirect amendment to the Constitution, warranting judicial review.
Reactions from Provincial Leaders
- The premiers of Ontario, Quebec, Alberta, Saskatchewan, and Nova Scotia have expressed their concerns in a letter to Prime Minister Mark Carney.
- The letter requests that the federal government reconsider its position and withdraw its legal arguments immediately.
- The premiers assert that Ottawa’s stance introduces untested limitations on democratically elected legislatures’ rights to utilize the notwithstanding clause.
The letter also accuses the federal government of promoting a vague and impractical legal standard unsupported by constitutional text. The premiers argue that this federal argument undermines the sovereignty of provincial legislatures and poses a risk to national unity.
Implications for Federalism
The issue at hand raises fundamental questions about Canadian federalism and democracy. The premiers insist that Ottawa’s position is a direct challenge to the principles that underpin the country’s governance structure.
The ongoing Supreme Court case has drawn in various attorneys general, including those from Quebec, Ontario, Manitoba, British Columbia, Saskatchewan, and Alberta. Justice Minister Sean Fraser, also Canada’s attorney general, has highlighted that the Court’s eventual ruling will influence the use of the notwithstanding clause by federal and provincial governments alike.
Community Concerns
In a separate but related note, Alberta’s government is facing scrutiny regarding a leaked memo that suggests the province may utilize the notwithstanding clause to navigate constitutional challenges affecting laws related to transgender individuals.
Statements from Leaders
Ontario Premier Doug Ford voiced particular criticism of the federal government’s approach. He characterizes the action as “the worst decision” made by Carney, cautioning that it could lead to significant repercussions. Ford maintains that it is legislatures, not the judiciary, that should have the final say on such matters.
