The Role of the U.S. Supreme Court
In a significant move, Ottawa has filed its arguments in the challenge to Quebec's Act respecting the laicity of the State in the Supreme Court of Canada. The memorandum submitted by the Ministry of Justice did not address the preventive use of the notwithstanding clause, but instead raised concerns about the repeated use of the clause beyond the initial five-year period, arguing that this could result in an "irreparable infringement of the rights and freedoms" guaranteed by the Canadian Charter of Rights and Freedoms.
The Quebec government used the notwithstanding clause in 2024 to re-invoke a law from any legal challenge. The repeated use of the clause every five years, as allowed by the Charter, has been a contentious issue, with former federal Minister of Justice, David Lametti, calling for a constitutional amendment to prohibit its preventive use by provincial governments.
In his farewell speech, Lametti declared that the preventive use of the notwithstanding clause indicates that the Canadian Charter of Rights and Freedoms is optional, a stance that may cause disappointment among caucus members and opponents of Quebec's secularism law. Premierminister Mark Carney, however, has not publicly expressed his views on the preventive use of the notwithstanding clause in the "Act respecting the laicity of the State."
The Bill 21 case is currently before the Supreme Court of Canada, and it is worth noting that the representatives of 93% of Canada's population contradict Ottawa in this case. The text, part of the Opinion section of Le Devoir, promotes diverse voices and ideas, and while it reflects the author's values and position, not necessarily those of Le Devoir, it does not contain any new information about the preventive use of the notwithstanding clause.
Elections were held in Quebec in 2022, and the outcome of the Bill 21 case may have significant implications for the future of secularism in the province and across Canada. As the case progresses, it is expected that more insights will be provided on the role and limits of the notwithstanding clause in protecting laws from being struck down for non-compliance with the Charter.
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