The debate over whether and how governments use the notwithstanding clause could soon land at the Supreme Court if it decides to take a case challenging Quebec’s Bill 21
The Supreme Court taking the case would make it a 'national issue,' Federal Justice Minister Arif Virani’s office confirmed. Virani speaks in the House of Commons in Ottawa, on May 6.
In an interview Friday, Mr. Virani said the notwithstanding clause should “always be a tool of last resort.” When asked for a situation in which it should be deployed, Mr. Virani said: “I am hard pressed to see any circumstance where it would be justified.”The federal government has never used Section 33, but provinces have deployed it more than a dozen times since 1982. In recent years, Ontario, Quebec and Saskatchewan have invoked it several times.
In late April, the National Council of Canadian Muslims, the Canadian Civil Liberties Association and teacher Ichrak Nour El Hakto appeal to the Supreme Court. They argue Bill 21 is discriminatory and unconstitutional. Legal experts predict the top court will probably hear the case. The court’s decision to proceed or not could be made public next week.
Ottawa to date has avoided direct confrontation with Quebec on Bill 21 but became more outspoken as the legal case progressed. In late 2021, Prime Minister Justin Trudeau said he was opposed to Bill 21 but wouldn’t intervene in the court case in Quebec. In early 2023, Mr. Trudeau said he opposed the pre-emptive use of the notwithstanding clause, as Quebec had done with Bill 21, and said Ottawa would intervene if Bill 21 reached the Supreme Court.
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