Title: Federal Government Intervenes in Quebec's Bill 21 Challenge

Justice Minister Sean Fraser has expressed pride in the federal government's involvement in the constitutional challenge against Quebec's Bill 21, which addresses the secular nature of the state. Fraser's stated goal is to reshape how provinces utilize the notwithstanding clause in the future. Achieving this would require a Supreme Court ruling that effectively acts as a constitutional amendment, which contradicts the original intentions of the framers of the Constitution.

If the government led by Prime Minister Mark Carney succeeds, it could exacerbate the most significant secession crisis since Quebec's independence referendums in the 1980s. During the 1980 referendum campaign, then-Prime Minister Pierre Trudeau promised constitutional reforms if Quebec voted against sovereignty. René Lévesque, the leader of the Quebec sovereignty movement, criticized the proposed Charter for its potential judicial overreach, arguing that it would be unacceptable for the Supreme Court, predominantly composed of non-Quebec English speakers, to override Quebec's National Assembly.

The Supreme Court later demonstrated this judicial supremacy in the Patriation Reference, granting the federal government unilateral power to request constitutional amendments. In response to the potential for another secession crisis, then-Justice Minister Jean Chrétien agreed to include the notwithstanding clause in the new constitutional framework, acknowledging that Canada might not have a Charter without it. This compromise was crucial, as noted by former Alberta Premier Peter Lougheed, who emphasized the clause's role in allowing legislators to counteract judicial decisions when there is reasonable disagreement on significant public issues.

While Lougheed's government never invoked the notwithstanding clause, Quebec's government did so extensively, using it to protect its policy choices. Over the past 40 years, the Supreme Court has shown restraint regarding the limits of Section 33, addressing the issue only once in the Ford v. Quebec case. In that unanimous decision, the Court ruled that there was no basis for substantive review of legislative policy when exercising the override authority, stating that as long as the language specified in the Charter was followed, challenges to the override could not be heard.

In the current Supreme Court case regarding Bill 21, the Carney government's arguments suggest that “irreparable impairment of a right or freedom would constitute an unauthorized amendment of the Constitution.” This interpretation could lead to a reversal of the Ford decision, allowing for unprecedented scrutiny of the notwithstanding clause.

Fraser's justification for this intervention references the long-term implications of the ruling. However, he and the cabinet may be overlooking significant political developments on the horizon, including the potential election of a Parti Québécois government in 2026 and the possibility of another sovereignty referendum by 2030. The implications of a decision that overturns Ford could have far-reaching consequences for Quebec's relationship with Canada and its future political landscape.