From our prime minister announcing his resignation to Donald Trump retaking the Oval Office to a looming trade war between Canada and the U.S., it has been a busy year in news—and we’re not even a month in.
Perhaps lost in the bustle was a judicial development last week that deserves some serious attention: the Supreme Court’s decision to hear a challenge of Quebec’s secularism law, Bill 21, that prohibits civil servants in positions of authority from wearing religious symbols while on the job.
We’ve gathered some of The Hub’s top legal experts and insiders to break down why this is such a big deal, what this has to do with the notwithstanding clause, and why a constitutional crisis is now looming.
Canadian unity is at stake
By Stéphane Sérafin, a law professor at the University of Ottawa
It is hard to imagine a more politically explosive case in which the Supreme Court could choose to revisit the conditions for the use of Section 33. This is a case out of Quebec, concerning its act respecting the laïcité of the state, also known as Bill 21.
As Quebec Attorney General Simon Jolin-Barrette and Quebec’s minister responsible for laïcité, Jean-François Roberge, reaffirmed in a statement issued in response to the leave decision, that act is considered fundamental to Quebec’s distinct cultural identity. It has been protected from interference by federally appointed judges through the use of Section 33, which enjoys special legitimacy in Quebec owing to its lack of consent to the 1982 Constitution, and thus the Charter as a whole.
If current polling trends continue, the Parti Québécois will form a strong majority government in the next Quebec election on a platform that includes holding another secession referendum. The “Oui” camp can scarcely hope for a better argument in which to anchor its campaign than a Supreme Court of Canada decision rendered by a majority of non-Quebec justices setting limits on its use of Section 33 to protect Bill 21. One can only hope that the Supreme Court will avert this outcome by holding to the correct interpretation of Section 33, instead of giving in to activist arguments that will put Canada on a constitutional precipice.
Is this a ploy to “Poilievre-proof” the next four years?
By Yuan Yi Zhu, assistant professor of international relations and international law at Leiden University
The Supreme Court of Canada’s decision to hear the challenge against Quebec’s “secularism” legislation does not come as a surprise. As its caseload continues to shrink (the Court delivered fewer than 30 reasoned judgments last year) so as to allow its judges time to engage in more important pursuits such as international travel, the tendency has been for the Court to focus even more on the hearing of “blockbuster” cases, which reliably generate headlines and confirm the Supreme Court’s role as “the final adjudicator of which contested values in a society should triumph,” in the words of Justice Abella.
Many suspect that the Court will use this dispute as a Trojan horse in order to limit the freedom of action of the incoming Pierre Poilievre government. It could use the case to impose limits on the use of the notwithstanding clause (which the Quebec legislature invoked in this case), or it could go even further and hold that unwritten constitutional principles can limit the law-making power of legislatures, although this is less likely, for now.
As things stand, many of the policies favoured by Poilievre will necessitate the invocation of the notwithstanding clause, so that any court-invented fetters on this override power pose a mortal danger to his governance agenda, particularly in the areas of criminal law and immigration. People around the Court are already whispering about its intention to “Poilievre-proof” the next four years; Canada’s next prime minister should take these murmurs seriously.
Cooler heads must prevail
By Howard Anglin, former deputy chief of staff to Prime Minister Stephen Harper, now a doctoral student at Oxford University
If the Supreme Court of Canada accepts the invitation urged by the appellants in English Montreal School Board v. Attorney General of Quebec to restrict or invalidate Section 33 of the Charter of Rights and Freedoms, it will set up a constitutional collision that none of us should want: it will invite governments to ignore its judgment.
Total judicial supremacy is not just incompatible with our tradition of government, it is incompatible with self-government period. It strips ultimate authority from the elected officials who are charged with the governance of the community and hands it to judges who are institutionally unequipped and constitutionally unqualified to govern us.
Pierre Trudeau’s Americanisation of the Canadian Constitution was only barely tolerable because Section 33 preserved a limited degree of democratic self-government. If that residual democratic protection is removed, extreme measures would be justified by the lack of an alternative response.
Normally, if our governments disagree with the Court’s interpretation of the Constitution there is the option, however remote, of responding with a constitutional amendment. But what would an amendment to restore Section 33 look like? Like Section 33, which the Court would just have rejected—a futile response.
If the Court really does try to disarm our elected officials, it might find that they aren’t prepared to hand over their weapons. Let’s hope cooler judicial heads prevail before it comes to that.
Prime Minister Justin Trudeau greets Supreme Court justices before the Throne Speech in the Senate chamber in Ottawa, Dec. 5, 2019. Chris Wattie/The Canadian Press.
This appeal deserves a straightforward dismissal—but don’t expect it to get one
By Kerry Sun, a doctoral student at Merton College, Oxford, and a Fortescue Scholar with the Canterbury Institute
Quite apart from one’s views on the merits of Bill 21, the appeal of the Hak decision implicates a more fundamental issue for Canada’s constitutional order: under what circumstances, if any, can our elected representatives give effect to a reasoned disagreement with the courts about the scope and meaning of rights? The vitality of Section 33 of the Charter, also known as the Constitution’s parliamentary supremacy clause or notwithstanding clause, hangs in the balance.
In the Court of Appeal of Quebec, the challengers to the laïcité law launched the kitchen sink against the Quebec legislature’s invocation of Section 33. Various novel theories were asserted, to the effect that the courts could control (more accurately, negate) the deployment of the notwithstanding clause, based on, among other things: Section 1 of the Charter, principles of international law, unwritten constitutional principles, and other grounds reminiscent of the “living tree” methodology. The Court of Appeal unanimously rejected these meretricious arguments. Properly applying the canonical precedent in Ford v Quebec (1988), it affirmed that “Section 33 lays down requirements of form only, and there is no warrant” for “substantive review” of the immunised legislation.
On its face, then, the appeal would hardly seem to merit anything but a straightforward dismissal. Yet the Supreme Court’s judicial adventurism ought to precipitate grave doubts about such a conclusion. In recent decisions, it has abrogated basic principles underlying our Westminster constitutional tradition, countenanced gross federal intrusions into areas of exclusive provincial jurisdiction, and upheld a dubious federal attempt to unilaterally amend the Constitution (over the objections of, inter alia, Quebec).
Judging from its current approach, the Court may well be prepared to further unsettle our constitutional order by departing from canonical understandings of the notwithstanding clause. Thus, the appeal is not only the occasion of a legal contest over the validity of legislation. More than that, it will raise questions about the very mode of reasoning operative at the Supreme Court of Canada in the exercise of its judicial power.
The Supreme Court is entering a snake pit
By Mark Mancini, an assistant professor at Thompson Rivers University, Faculty of Law
With the Supreme Court’s grant of leave in Working Families and Hak, it seems to have the notwithstanding clause in its crosshairs. Both cases ask whether there are substantive restrictions on a legislature’s use of the notwithstanding clause to combat judicial interpretations of rights. This question was settled by the Supreme Court’s Ford case in 1988: there are no such restrictions.
The Supreme Court is entering a snake pit by revisiting Ford and potentially limiting the powers of legislatures.
The Supreme Court, judicial review, and the Charter are not illegitimate by nature. A constitutionally entrenched bill of rights can be a salutary addition to our system of government. But by upsetting the balanced compromise envisioned in the Canadian Constitution between legislative power and the judicial enforcement of rights, the Supreme Court could invite accusations of illegitimacy. The notwithstanding clause is designed to recognize the role of legislatures in our system of government—legislatures are the site of law-making. The proper exercise of judicial review depends on judges staying in their lane, respecting their institutional role in a legal ecosystem that includes this constitutional recognition of legislative power. Overturning long-settled understandings of the notwithstanding clause might further sideline Parliament, a worry already compounded by cases like Power.
Section 33 of the Charter should not be seen as a constitutional black sheep. It is a provision designed to recognize one feature of the Canadian legal landscape, a feature that predated the Charter. It may be that Quebec’s illiberal Bill 21 is an affront to our sensibilities. I believe it is. But a wrongheaded government policy—as misguided as it is—is not a good enough reason to give “benediction” to heretofore unrecognized limits on the notwithstanding clause. At stake is the very legitimacy of the Supreme Court itself.
The Supreme Court of Canada is shown in Ottawa on Monday, May 6, 2024. Sean Kilpatrick/The Canadian Press.
The notwithstanding clause is in the judiciary’s best interests
By Gerard Kennedy, an assistant professor in the Faculty of the Law at the University of Alberta
As Howard Anglin has observed, much of Canada’s Laurentian intelligentsia views Section 33 of the Charter as an almost scandalous provision, allowing legislators to have the final say on the meaning of rights. Said intelligentsia will now have the chance to encourage the Supreme Court to read extratextual limits into the provision when it hears the constitutional challenge to Quebec’s Bill 21.
A note of caution to my friends who view it as self-evident that a culture of rights protection requires the judiciary to supervise the legislatures: would you rather live in the U.K., Australia, or New Zealand (where courts cannot invalidate legislation on rights grounds) or the United States (where they can—and there is no notwithstanding clause)? Because what the judiciary giveth, the judiciary can take away. And our neighbours to the south provide a warning of what may lie ahead if courts become too creative with their powers.
The progressive trends of the Supreme Court of the United States in the 1950s-1970s, and the conservative response to these trends, led to politicians caring far more about who was appointed to appellate and particularly apex courts. Past practices of concentrating solely on a candidate’s character and qualifications ended. In 1987, Robert Bork became the first Supreme Court nominee rejected for purely ideological reasons. The appointments process has essentially been partisan theatre ever since. And progressives are now yearning for a humbler judiciary with a more limited role.
In Canada, we have mostly charted a different path. While both Liberal and Conservative governments have emphasized different characteristics of judicial appointees, those appointed have overwhelmingly been viewed as respected and qualified. Perhaps it is our Canadian politeness. Perhaps we are simply a few decades behind the Americans. But perhaps it is because Section 33 gives the legislature a “safety valve” to respond to judicial rulings without needing to blatantly politicize the appointments process.
If we lose that safety valve due to the Supreme Court reversing its decision from 1988 that the only limits on the provision are formal ones, we may cross the Rubicon to a truly Americanized judicial appointments process. This is not in the judiciary’s interest, given its essential—but narrow—role in our constitutional order.
The Court is skating on thin constitutional ice
By Geoffrey Sigalet, an assistant professor of political science at UBC Okanagan
The notwithstanding clause was part of the deal that made the Charter possible. The provinces insisted on the clause against federal objections for two primary reasons: 1) to be able to check judicial activism (judges make mistakes and rights are subject to reasonable disagreements between citizens), and 2) to curb the use of judicial power in the centralizing interest of the federal government (because the federal government effectively controls the appointment of appellate courts, including the Supreme Court).
The very authority of courts to review laws for compliance with the Charter is tied to the legitimacy of the Charter as a whole package. The courts cannot pick and choose which parts of the Charter they want to follow without undermining their own authority, and the notwithstanding clause is part of the Charter. There are strong textual reasons for why the courts cannot substantively review Section 33, but the basic purpose of the notwithstanding clause also matters. If the Supreme Court chooses to substantively review the rights consistency, or even worse, to set substantive limits on the use of Section 33, it will be openly trying to constrain the part of the Charter that was intended to constrain judicial power.
The Court is skating on thin constitutional ice by choosing to revisit the question of whether they can substantively review laws like Quebec’s Bill 21 that validly invoke Section 33. In this case, Prime Minister Trudeau has explicitly called for the Court to set limits on the use of Section 33 and so the Supreme Court further risks the appearance of doing his bidding at the cost of the provinces. The Canadian legal establishment fails to realize how potentially disastrous this outcome could be for the democratic rule of law and national unity.
What happened to respecting democratic debate?
By Dwight Newman, professor of law at the University of Saskatchewan
The Section 33 notwithstanding clause has seen increased recent use by provinces that have fundamentally disagreed with what they found to be unconvincing constitutional interpretations from courts. As a unique structural element in Canada’s Constitution, the notwithstanding clause is meant to preserve an institutional balance in the interpretation of constitutional rights.
A whole coterie of elite law professors who tend to prefer the interpretations of elite judges over those developed within democratic parliamentary debate have spent the last few years trying to dream up new legal arguments to hamstring the use of Section 33. Fortunately, there are competing voices, and a new respect for the notwithstanding clause has simultaneously been growing.
The case will be a major test of whether the Court maintains the agreed structure of Canada’s 1982 constitutional amendments or will unbalance the Constitution toward an ever-growing role for the courts.
The clash is in the context of a law that only the province of Québec would adopt. Within Canada, Québec has a unique history with governmental power of religious institutions. So, it understandably has a unique perspective on threats to religious freedom posed by an overt religious presence in governmental institutions. It enacted the law at issue after literally decades of debate.
While Canadians outside Québec overwhelmingly have a different perspective on how best to balance state religious neutrality and religious accommodation for government employees, Québec’s approach is not dramatically different from that of functioning liberal democracies in Europe with analogous histories. These approaches have been permitted by the European Court of Human Rights.
So, the case will also test out whether Québec can distinctively respond to its unique circumstances within Canada.
On both the Section 33 issues and the Québec identity issues, the very future of Canada is at stake.
