Notwithstanding clause in spotlight at Supreme Court hearings

Recent arguments at the Supreme Court of Canada may soon impact how governments regulate employees’ religious expression, hiring practices and equality rights in public‑sector workplaces across the country.

Discussions over Quebec’s secularism law, Bill 21, have exposed a sharp divide between Ottawa and several provinces on how far governments can go in using the Charter’s notwithstanding clause – and what role courts should retain once that clause is invoked.

Bill 21 – adopted in 2019 – bars certain public servants, including teachers, from wearing religious symbols at work. Quebec shielded the law from Charter challenges by invoking Section 33, the notwithstanding clause, on a pre‑emptive basis. The law has twice been upheld in lower courts.

Non-binding declarations

At hearings this week in Ottawa, the federal government – backed by Manitoba and British Columbia – urged the Supreme Court to confirm that courts may still issue non‑binding declarations that laws invoking Section 33 violate Charter rights, even when judges cannot strike them down.

Manitoba’s lawyer Deborah Carlson told the court “there is nothing in Section 33 that precludes post‑enactment judicial scrutiny,” CBC News reported. She argued that declaratory rulings would give voters vital information about the impact of laws that override rights.

“What the court’s decision is doing in these circumstances is providing information to the electorate, and expert guidance to say what is the impact of a particular piece of legislation on the affected persons’ Charter rights."

Lawyer Guy Pratte, appearing for the federal government, went further, asking the court to impose limits on repeated use of the notwithstanding clause. According to The Globe and Mail, he acknowledged that provinces have a “broad margin” to use Section 33 without prior justification, but warned that using it over and over to neutralise entire categories of rights “would not at all be the intention of the framers,” referring to the politicians who negotiated the Charter in the early 1980s.

Ottawa also wants the court to confirm that judges can declare that a law has violated rights even where the notwithstanding clause is validly invoked, The Globe and Mail reported.

The Attorney General of Canada went further, arguing that the notwithstanding clause is intended to be temporary and cannot be used in a way that irreparably harms Charter rights, the Canadian Civil Liberties Association (CCLA) shared on its website. As such, courts must retain jurisdiction to determine whether a government’s use of the clause effectively amounts to an unconstitutional amendment, the Attorney General argued, according to the association.

In March 2025, the Quebec government introduced Bill 94,which prohibits school support staff – such as lunchroom and after‑school care monitors, administrative secretaries and volunteer librarians – from wearing religious symbols, including items like the hijab or kippa, in the workplace. The government later expanded Bill 21 to cover daycare workers.

Provinces defend broad use of Section 33

Quebec – supported by Ontario, Alberta and Saskatchewan – is opposing both ideas. These provinces argue that once Section 33 has been triggered, courts should not comment on whether the underlying law is constitutional.

“Ontario’s position is that once Section 33 has been invoked, courts should not provide opinions on whether the law would have been constitutional if that invocation had not been made,” Ontario Attorney General Doug Downey told the court, according to CBC. In a separate intervention, he said the proposals from Ottawa and Bill 21 challengers amount to a call “to rewrite the Constitution,” and insisted that courts “should not provide opinions,” describing declarations of rights violations as an “academic exercise” that could mislead Canadians, The Globe and Mail reported.

Alberta Deputy Minister of Justice Malcolm Lavoie took a similar line. He argued that the notwithstanding clause is a “fundamental feature of the Constitution” that allows provinces to “chart their own course in a united Canada,” The Globe and Mail reported. Lavoie told the Court that allowing non‑binding declarations when Section 33 is used would “step well outside the judicial role,” calling such an approach “unprecedented and unnecessary.” Earlier, he warned that treating a law as “operative yet invalid” would create “a constitutional and logical anomaly that has no place in a society governed by the rule of law,” CBC reported.

Judicial role and political consequences

The clash highlighted a broader concern for the Court: whether issuing declaratory judgments in notwithstanding‑clause cases would drag judges into political debates.

Justice Malcolm Rowe questioned Carlson on whether the Court should stay out of such territory to preserve the separation between the judiciary and politics. “Should we just sort of not engage in it because we want to maintain a certain separation between what the courts do and what happens in the political arena?” he asked, according to CBC.

Carlson replied that courts provide a crucial forum for testing evidence and arguments in a calm environment. She said there may be “immense benefit in having constitutional issues explored in the dispassionate arena of a judicial hearing… that can go far, far beyond what you’re likely to get on your social media feed,” CBC reported.

Pratte told the judges that constitutional adjudication inevitably has political effects, but that this should not deter courts from doing their work. “Constitutional law courts, particularly those dealing with the Charter, will never do anything if we’re concerned about political circumstances, because there are always political consequences to your decisions,” he said. “We should not confuse the possible political consequences of a judicial decision with the fact that it remains a judicial decision,” CBC reported.

Earlier, the English Montreal School Board (EMSB) also made representations on the unconstitutional nature of Québec’s Bill 21 before the Supreme Court of Canada.

“The EMSB challenged Bill 21 in the Québec Superior Court in 2020. The legislation has barred the EMSB from hiring qualified teachers who wear religious symbols while at work (overwhelmingly, Muslim women wearing the hijab),” the board narrated in a statement on its website. “The Québec Superior Court agreed with the EMSB and struck down key provisions of Bill 21 in April 2021 (the only successful challenge to the Bill at first instance). However, the Québec Court of Appeal overturned that decision in February 2024. The EMSB, along with other parties, successfully sought leave to appeal that ruling to the Supreme Court of Canada.”

The board claimed that its legal submissions are based on Section 23 of the Canadian Charter of Rights and Freedoms, which “guarantees minority language educational rights to the English‑speaking minority in Québec”.

“Section 23 protects the exclusive right of the English‑speaking community to manage and control its school boards in accordance with its linguistic and cultural values,” EMSB stated.

“Respect of the personal and religious rights of our students and staff, which are guaranteed both by the Canadian and Québec charters of rights, is a deeply‑held value at the EMSB,” said EMSB Chair Joe Ortona. “Bill 21 runs roughshod over what we teach with regard to respect for individual rights and religious freedoms.”

The Superior Court of Québec sided with the EMSB in respect of Section 23 of the Canadian Charter, but this result was overturned by the Québec Court of Appeal, the group explained.

On Parliament Hill, Bloc Québécois Leader Yves‑François Blanchet pressed Prime Minister Mark Carney on Bill 21 and the separation of church and state. “It is the responsibility of the federal government to defend [the] Charter,” Carney told the House of Commons of his government’s arguments at the Supreme Court. “We will await the result,” The Globe and Mail reported.

Quebec’s secularism framework is moving deeper into the public‑sector workplace, and organisations are warning that the talent tap is tightening just as staffing crises worsen in sectors such as education and child care, HRD previously reported.