The Canadian Supreme Court just wrapped up hearings on Quebec’s Bill 21, a law banning public workers from wearing religious symbols such as hijabs or turbans. This case tests the legality of the controversial notwithstanding clause of the Canadian Constitution. Why should you care? For many reasons! Let’s get into it.
What is the notwithstanding cause?
We’ve covered this issue extensively with constitutional scholar and Section 1 founder Peter Biro (get caught up here), but in short: Section 33 of our Constitution allows governments to pass laws that ignore certain Charter rights (like religion or equality) for 5 years, renewable. When Canada patriated the constitution in 1982, the clause was added as Quebec’s so-called safety valve against a constitution it opposed, giving that province – and all provinces – essentially a legislative veto.
What is the debate surrounding Quebec’s Bill 21?
Bill 21 is Quebec’s 2019 law promoting secularism (keeping religion out of public jobs). Those who oppose the bill say it violates Charter rights that protect religious freedom and equality, but Quebec used the notwithstanding clause to protect the law from being struck down. The Supreme Court heard arguments this past week from the provinces, the federal government, and rights groups – but not to judge Bill 21 directly.
Is the Supreme Court deciding if the notwithstanding clause is constitutional?
Not exactly. The notwithstanding clause is explicitly part of Canada’s Constitution, so the Supreme Court won’t rule it unconstitutional and can’t strike it down entirely. Instead, they’re deciding the limits of the controversial clause: Can courts still review and declare a law unconstitutional (in this case, that Bill 21 violates constitutionally protected Charter rights) when a government uses the clause ahead of time to shield it from such court challenges?
Who are the stakeholders?
- Quebec, Alberta, Ontario and Saskatchewan: These provinces argue the clause gives total protection – that courts can’t even issue symbolic declarations of Charter violations, as that would undermine legislatures and create pointless opinions without remedies.
- Human rights activists and civil liberties groups: These stakeholders want courts to keep strong oversight power, declaring violations of Charter rights in order to hold governments accountable and create pathways for repealing controversial laws. They see unlimited notwithstanding clause use as dodging equality rights.
- BC, Manitoba, the federal government, and others: The federal government and others argue courts should still declare violations (even if non-binding) in order to inform citizens of their rights and ensure transparency without overriding the law itself.
What’s the timeline for a decision?
The arguments have been made, but there is no set date for the Supreme Court of Canada to make a decision. Given the seriousness of the case, we likely won’t know the outcome of this case until the fall at the earliest.
Why is this case so consequential?
The Supreme Court’s decision could have far reaching consequences for Canada, potentially even altering how our federation functions, altering the balance between elected politicians (who make laws) and judges (who check if laws are fair under the Constitution).
Consider this:
- If the Court says judges can still declare a law unfair (even if the notwithstanding clause protects it), cases like Saskatchewan’s school pronoun ban could get stronger court opinions pressuring the province to rethink it. But if the Court says that no reviews are allowed, future challenges (like Alberta’s use of the notwithstanding clause to legislate striking teachers back to work) might end quietly, with less public pushback.
- Provinces like Alberta, Ontario or Quebec might use the clause more boldly on hot topics – think language laws, housing rules or environmental policies – if they win total protection. A limited-clause ruling could make politicians hesitate, forcing them to justify laws publicly or face judge warnings that sway voters. Either way, the decision has the potential to shape the legal limits of the provinces, their laws and our Constitution.
Final food for thought
A win for those arguing to protect the full use of the notwithstanding clause might calm separatist feelings in Alberta, Saskatchewan and Quebec, as this decision would safeguard provincial rights. But if the Court rules that judges should retain at least some degree of oversight on the legality of all laws, some in Alberta or Quebec might view the decision as weakening regional power or harming unique cultural identities, fuelling separatist movements in both provinces. With polls showing that half of Canadians are worried about the inappropriate use of the notwithstanding clause us, the Supreme Court’s decision runs the risk of amplifying east-west fights, further testing national unity at a time when Canada’s sovereignty is under threat.