Five provinces lagging behind Quebec in utilizing the exemption clause
Headline: Six Canadian Provinces Defend Quebec's Right to Use Derogation Provision in Bill 21 Case
The Supreme Court of Canada is currently considering a challenge to Quebec's Bill 21, a controversial law that restricts the wearing of religious symbols by certain public sector workers. On Wednesday, the court received arguments in the case, including from six provinces that have filed memorandums in defence of Quebec's right to use the derogation provision.
The derogation provision, Section 33 of the Canadian Charter of Rights and Freedoms, allows provincial legislatures to override certain Charter protections for a period of five years. British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, and Quebec have all argued in favour of preserving the right of legislatures to have the final say on court matters they deem of prime importance.
British Columbia's intervention in the case is not an endorsement of Bill 21 or the preventive use of the derogation provision, but rather a concern for the profound consequences that the law may have for the rights of minorities and religious freedom. The government of Victoria defends the right of provinces to resort to the derogation, but believes the court can still declare rights violations if they occur.
Ontario last used the derogation provision in 2022 for a law forcing public school employees back to work, while Saskatchewan last used it in 2023 for its 'Parents' Rights Charter' bill. Quebec resorted to the derogation provision in 2022 for its 'Bill 96', the Act respecting Quebec's official and common language, French. Alberta mentioned that there would have been no Charter of Rights and Freedoms without the derogation provision, highlighting its importance in allowing provinces to balance their own unique needs with the protection of individual rights.
The other provinces involved in the debate demand that the court remain silent on the rights that would theoretically be violated if the derogation provision were not used. The federal government, on the other hand, fears 'irreparable damage to rights and freedoms' if the derogation is renewed every five years.
The governments of Ontario, Manitoba, and New Brunswick have also defended Quebec's right to invoke the notwithstanding clause in relation to Bill 21 on secularism. British Columbia has never had to resort to the derogation provision for any of its laws. The Supreme Court must now decide if Quebec had the right to use the derogation provision to shield Bill 21 against judicial challenges. The decision could have significant implications for the balance of power between the courts and provincial legislatures in Canada.
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