Canada’s Notwithstanding Clause: Not Standing With Fundamental Rights

On February 29, 2024, the Court of Appeal of Quebec issued a judgment on the constitutionality of Bill 21 (An Act Respecting the Laicity of the State) that immediately sparked outrage among civil liberties advocates. The controversial bill, passed by the National Assembly of Quebec in 2019, bans teachers, law enforcement officers, judges, and some other public employees from wearing religious symbols at work. This most recent ruling not only upheld the bill but also overturned an exemption that the Superior Court of Quebec had previously granted to staff of English schools in 2021. The dispute will likely move to the Supreme Court of Canada, with several organizations filing for leave to appeal. The Court of Appeal of Quebec’s ruling on Bill 21 ultimately highlights the manner in which the ambiguous language of Section 33 of the Canadian Charter of Rights and Freedoms enables the violation of basic rights across Canada.

Bill 21 demonstrates how Section 33 allows legislatures to infringe on individuals’ rights to freedom of expression and equality under the law, which are respectively enshrined in Sections 2.b and 15.1 of the Canadian Charter. The bill is grounded in the principle of laicity, which it defines through four pillars: The separation of religion and State, the religious neutrality of the State, the equality of citizens, and freedom of religion. Although the bill technically imposes a blanket ban in keeping with this principle, the reality is that it disproportionately affects those whose religious beliefs place a greater emphasis on visible expression. Perri Ravon, lawyer for the English Montreal School Board, noted that as of November 2022, 100 percent of the individuals who had lost their jobs due to Bill 21 in both the English and French Montreal school boards were Muslim women who wore the hijab. The asymmetrical impact of the bill has been further reflected in public opinion. In a 2022 survey of around two thousand Quebecers, the Association for Canadian Studies and Léger found that 63.7 percent of Quebec’s general population supported Bill 21. However, 82.9 percent of Muslim women and 86.7 percent of Sikh men reported that their “feeling of being accepted as a full-fledged member of Quebec Society” had lessened in the three years since the bill’s passage. This disparity confirms that individuals who wear the hijab or turban have felt the most confined by Bill 21.

Nevertheless, both the Court of Appeal of Quebec and the Superior Court of Quebec allowed Bill 21 to stand because it invokes Section 33 of the Canadian Charter of Rights and Freedoms. Commonly known as the “notwithstanding clause,” Section 33 permits federal and provincial legislatures to pass laws that violate Sections 2 and 7 through 15 of the Charter—which encompass “Fundamental Freedoms,” “Legal Rights,” and “Equality Rights”—for infinitely renewable periods of five years. When the case passed through the Superior Court of Quebec as Hak v. Procureur Général du Québec in 2021, Justice Marc-André Blanchard wrote that it was “incontestable” that Bill 21 violated the Canadian and Quebec Charters; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the Universal Declaration of Human Rights. Regardless, the judge concluded that the bill’s invocation of the clause was “legally unassailable.” He cited the 1988 case Ford v. Quebec (Attorney General), in which the Supreme Court of Canada established that legislatures are not required to justify their use of the notwithstanding clause; instead it suffices for a legislature to formally express that it will invoke the clause and declare which portions of the Charter it will override. Hence, the Superior Court of Quebec ruled that Bill 21 was constitutional, though it exempted the staff of English-speaking schools to protect minority language rights not covered in Section 33. Similarly, the Court of Appeal of Quebec emphasized in its February judgment that it was ruling on the “legality of [Bill 21],” not the “wisdom of enacting it.” It, too, deferred to Ford v. Quebec, indicating that this was the only case which had defined the requirements for invoking the notwithstanding clause. As such, despite confirmation that Bill 21 violates fundamental rights, both courts determined that it was constitutional.

While Quebec’s Bill 21 is one of the most recent pieces of legislation invoking the notwithstanding clause, the clause has also protected bills that contravene human rights in other provinces. In 2023, Saskatchewan’s Ministry of Education enacted a policy (The Use of Preferred First Name and Pronouns by Students) which prohibited schools from using the preferred pronouns of students under 16 without parental approval. Regina-based nonprofit UR Pride Centre for Sexuality and Gender Diversity challenged the policy before the Court of King’s Bench for Saskatchewan on the grounds that it breached the rights of gender-diverse youth. The Court granted an interlocutory injunction against the policy, concluding that affected youth would likely “suffer irreparable harm” otherwise. In response, the Legislative Assembly of Saskatchewan replaced the pronoun policy with a similar bill (The Parents’ Bill of Rights) shielded by the notwithstanding clause. Furthermore, in 2022, the Legislative Assembly of Ontario used the clause to ban 55,000 education workers from striking. The assembly repealed the law within two weeks due to political backlash. However, its initial enactment demonstrates that the notwithstanding clause allows governments to undermine the freedoms of peaceful assembly and association established in Sections 2.c. and 2.d of the Charter.

The recent broadening of the use of the notwithstanding clause in Canada, as exemplified by the aforementioned bills, does not seem consistent with the framers’ intentions. Since Canada’s Constitution, which includes the Canadian Charter of Human Rights and Freedoms, was not repatriated until 1982, its living framers have been able to clarify the purposes of certain clauses. Three individuals who pushed fervently for the adoption of the notwithstanding clause in Canada’s 1982 Constitution Act—Jean Chrétien, Roy McMurtry, and Roy Romanow—condemned Ontario’s use of the clause to reduce Toronto’s city council seats ahead of an election. In a 2018 statement to the Toronto Star, they commented that Section 33 was meant for “exceptional situations, and only as a last resort after careful consideration.” Indeed, the clause was introduced to safeguard the democratic will against the decisions of an unelected judiciary, not to preemptively override rights in a way that Superior Court of Quebec Justice Blanchard deemed “flippant and inconsiderate.”

Still, the vagueness of the phrasing and subsequent interpretation of Section 33 have enabled provincial legislatures to continue weaponizing it to override basic rights. Section 33.1 of the Charter states that legislatures may declare that an Act “shall” operate notwithstanding a section of the Charter. In Ford v. Quebec, the Supreme Court noted that this wording fails to specify whether legislatures can invoke the clause after a court has reviewed a law and ruled on its constitutionality. Dr. Grégoire Webber of Queen’s University contends that this ambiguity has led provinces to excessively apply the clause preemptively in order to insulate legislation from judicial critiques. In addition, the precedent set in Ford v. Quebec casts a wide net for permissible uses of the notwithstanding clause. In the 1988 judgment, the court stated that the requirement for use of the clause is “an express declaration that an Act…shall operate notwithstanding a provision.” This, in theory, opens the door for legislatures to bypass any provision in the concerned sections of the Charter—a significant allowance, as these sections include critical provisions, from freedom of thought to non-discrimination before the law.

 Quebec’s use of the notwithstanding clause for Bill 21 will heavily impact future cases, not just in Quebec, but in all of Canada. The case will likely move to the Supreme Court of Canada, whose decision will set an important precedent for future uses of the clause by either upholding, overturning, or limiting this interpretation of its application. Foreseeable future uses include the Parents’ Bill of Rights in Saskatchewan, as well as potential legislation to which legislators in various provinces have alluded. If the Supreme Court comes to the same conclusion on Bill 21 as the Quebec Court of Appeal and the Quebec Superior Court before it, it will uphold a wide interpretation of the notwithstanding clause that renders crucial parts of the Canadian Charter a mere suggestion.

Edited by Jacqueline Hutchins