Justice minister rules out withdrawing legal submission on notwithstanding clause

OTTAWA — Justice Minister Sean Fraser has rejected calls from five premiers for Ottawa to withdraw its legal argument calling for limits on the use of the Constitution’s notwithstanding clause.

Fraser said it would be “unimaginable” for a federal government to steer clear of a case affecting Charter rights that will have lasting impacts. He suggested the premiers’ argument is “untenable.”

The minister, who is also attorney general, told reporters Wednesday morning this should be a legal matter decided through the courts, not the subject of political debate and pressure.

“The interplay of the notwithstanding clause, vis-a-vis the rights and freedoms that the Charter guarantees to all Canadians, is something that will be of national importance, that will have lasting impacts,” Fraser said.

“It is unimaginable that a federal government would not intervene to share its perspective on the meaning of the Charter — particularly at a time when, in Canada and around the world, democracies are increasingly under strain, courts’ independence are being questioned.

“We are going to stand ardently in defence of the Charter and the rule of law, and thankfully it will be the court and not a federal or provincial government who will make the decisions.”

In a filing submitted last month to the Supreme Court of Canada in a case on Quebec’s secularism law, the federal government argues constitutional limits on the notwithstanding clause should prevent it from being used to wipe out rights guaranteed under the Charter of Rights and Freedoms.

The Constitution’s notwithstanding clause gives provincial legislatures or Parliament the ability to pass legislation that effectively overrides provisions of the Charter for a five-year period.

In a letter sent Tuesday to Prime Minister Mark Carney, the premiers of Ontario, Quebec, Alberta, Saskatchewan and Nova Scotia say the federal government should withdraw its court submission because it amounts to a “complete disavowal of the constitutional bargain that brought the Charter into being.”

The premiers argue Ottawa’s argument threatens national unity.

“The federal government’s position amounts to a direct attack on the foundational constitutional principles of federalism and democracy,” the letter says.

But Fraser said Canada should be “very careful” to guard against the erosion of rights.

He said Canada’s possible “future downfall as a nation, should it ever come,” will not come about through invasion but through “some future government who is empowered by an erosion of our rights today.”

“If we are not very careful, we are going to see, bit by bit, the rights that we enjoy as Canadians will come to cease to exist and we will have no one but ourselves to blame.”

Bloc Québécois MP Rhéal Fortin called Ottawa’s intervention a “constitutional power play” in question period Wednesday. He said the premiers are standing up to a federal government that is trying to use the courts as a “weapon” in its “fight against the notwithstanding clause.”

Fortin also called on Fraser to take back his “insulting” analogy about the rollback of human rights elsewhere around the world — and specifically for citing Russia’s invasion of Ukraine.

Fraser shot back that Fortin was deliberately misinterpreting his comments to bolster a “weak” political position. He said having Ottawa’s legal position tested by the provinces in court is the “healthy way, in a democracy, to challenge ideas you may not like.”

Speaking to reporters last month, Ontario Premier Doug Ford called the court intervention “the worst decision” that Carney has ever made.

Ford said elected provincial legislatures should not be blocked by unelected judges.

This report by The Canadian Press was first published Oct. 8, 2025.

— With files from Jim Bronskill

Kyle Duggan, The Canadian Press