Motion Calling for Ottawa to Withdraw From Legal Challenge on Notwithstanding Clause Fails in House

A Bloc Québécois motion calling on the Liberal government to withdraw its factum filed with the Supreme Court around the use of the notwithstanding clause failed in the House of Commons.

The vote failed on Sept. 24, with 159 “yays” and 170 “nays, as the Bloc and Conservatives voted in favour of the motion, and the Liberals, NDP, and Green Party voted against it. A total of 14 Conservative and Liberal MPs did not vote.

Federal Justice Minister Sean Fraser filed a factum with the Supreme Court outlining the government’s position on “constitutional issues raised” by the use of Section 33 of the Charter, also known as the notwithstanding clause. That clause allows the federal and provincial governments to override some provisions of the Charter by enacting a law, and also prevents judicial review of the legislation for five years.

The motion by Bloc MP Rhéal Éloi Fortin also called for the government to withdraw from its legal challenge of Quebec’s Bill 21, which bans teachers, judges, and police officers from wearing religious symbols while working. The Supreme Court of Canada has agreed to hear a challenge to the law, as the Quebec government has used the notwithstanding clause to shield it from some aspects of the Charter.

The motion also called for the House to “denounce the government’s willingness to use the Supreme Court to take constitutional powers away from Quebec and the provinces.”

During Question Period held prior to the vote, Bloc Québécois Leader Yves-François Blanchet said the government’s factum filed in the Supreme Court suggested Quebec may use the notwithstanding clause to “bring back slavery or take away women’s rights,” and questioned if the prime minister believed that to be a risk.

Prime Minister Mark Carney responded that the Charter of Rights and Freedoms protects all Canadians, and it is the job of the federal government to defend it.

While Quebec has been using the notwithstanding  clause continuously for its language and secularism laws, the clause has seen increased usage by other provinces in recent years. Ontario invoked the clause in June 2021 to limit third-party election financing, and then did so again in 2022 when negotiating a new contract with 55,000 Ontario education workers, only to repeal it days later.

Saskatchewan invoked the clause in October 2023 to pass its Parents’ Bill of Rights, which required schools to obtain parental consent before changing the preferred name or gender identity for youth under 16. Alberta Premier Danielle Smith has also said she won’t rule out using the clause to nullify challenges to her government’s legislation restricting gender transition for minors.

While the federal government has never used the notwithstanding clause, Conservative Leader Pierre Poilievre said during the last election that he would use the notwithstanding clause to impose consecutive life sentences on those who commit multiple murders.