MONTREAL — The federal government is urging the Supreme Court of Canada to impose restrictions on how provinces can utilize the notwithstanding clause of the Charter of Rights and Freedoms. This request was made in a legal submission filed on Wednesday, as part of the ongoing case concerning Quebec’s secularism law, known as Bill 21.

Quebec has invoked the notwithstanding clause to protect its legislation from constitutional challenges. The federal government argues that the repeated use of this clause could effectively alter the Constitution without proper authority. In its filing, Ottawa contends that the court should determine whether the use of the clause could lead to "irreparable impairment" of Canadians' rights.

"The prolonged impossibility of exercising a right or freedom would, in practice, be tantamount to denying its very existence," the government stated in its factum.

Ontario and Alberta have expressed support for the use of the notwithstanding clause, asserting that it is a vital component of the Canadian Constitution. They argue that it should not be undermined by the Supreme Court. In their submissions, both provinces defended Quebec's pre-emptive use of the clause when it enacted its secularism law in 2019. This law prohibits public sector workers in positions of authority, such as teachers and judges, from wearing religious symbols while on duty.

Ontario's attorney general noted, "Ontario does not support Quebec’s decision to require citizens to remove religious symbols to serve the public or to receive public services. But that is a decision for the national assembly, and ultimately the voters of Quebec, to make for themselves."

Both provinces maintain that the notwithstanding clause, found in Section 33 of the Charter, was crucial during the negotiations of the 1982 Constitution and is essential for preserving provincial legislative sovereignty. Alberta's submission emphasized that "Section 33 was... a hard-fought and hard-won compromise. Simply put, there would have been no Charter without (it)."

The Supreme Court has agreed to hear a legal challenge against Bill 21, brought forth by various groups opposing the law. However, a hearing date has not yet been established. Some appellants are requesting that the court limit the pre-emptive use of the notwithstanding clause or assert that courts can still evaluate the constitutionality of laws that remain in effect when the clause is invoked. Ontario argues that these requests are attempts to "amend the Constitution by the back door."

The province warns that prohibiting the pre-emptive use of the notwithstanding clause would leave legislation in a state of uncertainty for extended periods. Alberta contends that a court issuing a non-binding declaration regarding a law passed under the notwithstanding clause would merely act as an interest group in a political arena.

Since the passage of Bill 21, other provinces have increasingly invoked Section 33. In 2023, Saskatchewan used the clause to implement a law requiring parental consent for students under 16 to use their preferred names or pronouns in schools. Quebec has also invoked Section 33 for other legislation, including changes to its language law.

Last month, the Saskatchewan Court of Appeal ruled that courts can issue declarations regarding rights violations in laws that invoke the notwithstanding clause. Quebec opposed such declarations in its arguments submitted to the Supreme Court in August.

Prime Minister Mark Carney has expressed his opposition to the pre-emptive use of Section 33. On Wednesday, Bloc Québécois Leader Yves-François Blanchet accused Carney of using the notwithstanding clause as a means to criticize Quebec's secularism approach. "If you want to attack the fundamental values of Quebec and the national language of Quebec, say so and do it openly," he stated.