QUESTION PERIOD — Justice
Notwithstanding Clause
September 23, 2025
Senator Moreau, last week, the Attorney General’s factum before the Supreme Court of Canada concerning section 33 of the Charter of Rights and Freedoms, in other words the notwithstanding clause, opened the door to the court re-examining its 1988 decision on that clause, which is a pillar of provincial autonomy.
As you know, Quebec has long been using section 33 responsibly to reflect its values. Ottawa is now trying to dictate how and when the province can use it. Why does the government want to risk destabilizing the delicate balance of national unity instead of respecting the jurisprudence that maintains the balance between the federal government and the provinces?
Contrary to the premise of the question, I don’t believe that the federal government is trying to dictate anything. The matter is before the Supreme Court of Canada, and I think that’s the appropriate body to interpret the Canadian Constitution and the Charter of Rights and Freedoms, which is an integral part of that.
It’s important to bear in mind that this issue has never been brought before the court. I think it’s also important for us to rely on the expertise of the Supreme Court to determine the scope of the application of the notwithstanding clause, and the Government of Canada has been careful not to go into detail about secularism or the substance of Bill 21.
The question before the court is whether a right that is otherwise guaranteed can be repeatedly set aside by invoking the notwithstanding clause. This question has never gone before the courts. I believe that the government is well positioned and has a constitutional obligation to ask the court to interpret the Canadian Charter of Rights and Freedoms.
Senator Moreau, I’m a little surprised by this kind of response from a former minister of the Quebec National Assembly. Senator Moreau, does the government not see that this intervention could set a dangerous precedent and allow Ottawa to override other provincial laws at will?
Given that it is a constitutional democracy, if Canada failed to intervene in a debate such as this, it would probably become the only democratic government in the world not to defend its Constitution and the Charter of Rights that forms part of it. It is also important for the Quebec National Assembly, all the other provinces and territories, and all governments to understand the true scope of this provision of the Canadian Charter of Rights and Freedoms. This is the information that the Supreme Court will be called upon to provide in the coming weeks and months.
