This article originally appeared in the National Post.
By Ryan Alford, October 6, 2025
Justice Minister Sean Fraser appears quite proud of the federal government’s intervention into the constitutional challenge of Quebec’s Bill 21, its act respecting the laicity of the state. But he ought to bear in mind: pride goes before destruction.
In his news release, Fraser states his ambition plainly: he hopes his efforts will alter how the provinces can employ the notwithstanding clause for years to come. The only path to this outcome involves a Supreme Court ruling that would serve as a de facto constitutional amendment — contrary to the intentions of those who framed it. If Prime Minister Mark Carney’s government gets its way, the ruling would inflame the most significant secession crisis since Quebec’s two independence referendums.
During the 1980 referendum campaign, Pierre Trudeau promised that its defeat would lead to constitutional renovation of Canadian federalism. René Lévesque objected to the proposed Charter, which ignored “questionable consequences of judicial activism” flowing from constitutional entrenchment of rights: “it would be unthinkable that the Supreme Court of Canada, which shall always have a majority of non-Quebecer, English-speaking members, should supersede Québec’s National Assembly as the ultimate authority.” The Supreme Court of Canada proved Lévesque’s point about judicial supremacy soon afterward in the Patriation Reference, when it gave the federal government a trump card to play in the negotiations, holding that Ottawa, as a legal matter, had a unilateral power to request constitutional amendment.
Despite being dealt a strong hand by the Court, then-justice minister Jean Chrétien sought to pre-empt another secession crisis. He agreed to including the notwithstanding clause in the new constitutional instrument, conceding that “Canada probably wouldn’t have had any Charter without it.” This secured the grand bargain because, as then-Alberta Premier Peter Lougheed noted, the notwithstanding clause preserved the possibility of “effective political action on the part of legislators to curb an errant court” where there was “reasonable disagreement over equally important public objectives.” While Lougheed’s government never invoked the notwithstanding clause, Lévesque’s did, in spades: Quebec’s precarious relationship to Canada’s new form of judicial review was stabilized by vigorous use of the clause to insulate its policy preferences.
Over the past four decades, the Supreme Court of Canada has demonstrated commendable prudence and restraint in this area of constitutional law. It has addressed the issue of the limits of Section 33 precisely once during this period, in Ford v. Quebec. In the unanimous decision, the Court held that “there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case.” Essentially, the Court ruled that as long as the precise language specified in the Charter for invoking the clause was employed, a challenge to the override cannot be heard. Addressing Quebec’s blanket use of the clause in omnibus legislation, the court explicitly rejected the argument that “it amounted to an attempted amendment of the Charter.”
Now, the Carney government’s submissions in the pending Supreme Court case on Quebec’s Bill 21 argue that “irreparable impairment of a right or freedom would constitute an unauthorized amendment of the Constitution.” It’s a conclusion that would mandate overturning Ford, allowing unprecedented means of scrutinizing and restricting the notwithstanding clause. Fraser justified this intervention by referencing the “years to come.” But he — and the cabinet — seem oblivious to the most important events those years may bring: namely, the likely election of a Parti Québécois government in Quebec in 2026, and yet another sovereignty referendum by 2030.
It’s unclear what form of political myopia prevents Fraser and Carney from observing that a decision overturning Ford would suggest to Quebecers (not to mention the other five provinces that intervened opposite the federal government) that the terms of confederation are subject to judicial alteration at Ottawa’s demand, and that such demands will prevail whenever Quebec’s policy objectives offend the sensibilities of the rest of Canada. For the sake of national unity, Carney should reflect on the wisdom of Chrétien: without a viable notwithstanding clause, not only would there have been no Charter, but there may not be a Canada for much longer.
It is not too late for the prime minister to withdraw this ill-considered and ill-timed attempt to take away the only element of our constitutional order that assuages Quebecers’ perennial concern: that judicial supremacy in Canada destroys any prospect of maintaining a distinct society within our shared constitutional order. The constitution, as it is interpreted by the Supreme Court of Canada, should never be turned into the most compelling argument for secession.
Ryan Alford is a constitutional historian who serves as professor at the Bora Laskin Faculty of Law and a senior fellow at the Macdonald-Laurier Institute.
