The Supreme Court of Canada has granted leave to English Montreal School Board, et al. v. Attorney General of Quebec, a monumental case that will seek to answer a seemingly novel question. Does the Charter of Rights and Freedoms’ notwithstanding clause effectively shut down any judicial consideration on a given law’s constitutionality? Or is it still fair game for judges to weigh in?
The notwithstanding clause—Section 33 of the Charter—states that Parliament or a provincial legislature can declare that an act or a provision thereof “shall operate notwithstanding a provision in Section 2 or Sections 7 to 15 of the Charter.” There’s no real dispute that this means legislatures can, for up to five years unless the declaration is renewed, shield laws from being struck down by courts on the basis that they would otherwise violate those sections of the Charter, which protect everything from free speech to cruel and unusual punishment.
But it remains an open question whether judges need to put their pens down as soon as it’s been invoked by a legislature, or whether they can still go ahead with hearing Charter challenges and issue the aforementioned declarations. This is not a simple question. There are compelling textual arguments on both sides of the debate.
The question arose recently in two polarizing cases: first, the challenge to Quebec’s Bill 21, the law that bans religious symbols like hijabs and kippot on public sector workers. In that case, the judge declined to issue a declaration on the law’s constitutionality in part because he thought it would be “doing indirectly what he couldn’t do directly.” The Court of Appeal upheld this position, citing the 1988 Supreme Court case Ford v Quebec.
But in Saskatchewan, in a challenge to the province’s preferred pronouns policy for school children, Justice Megaw of the Court of King’s Bench suggested in an injunction decision that he was open to issuing a declaration that rights were breached, even if he upheld the law.
The Saskatchewan government opposed this, citing a case called Horner where the judge had said that Section 33 “insulates legislation from Charter attack and judicial scrutiny” and that, if it’s invoked, the “claim would be foreclosed and beyond judicial review.” Justice Megaw held that this was obiter dicta (a remark incidental to the holding) and therefore not binding law. In fact, there is no binding case law in Canada that squarely answers the question of whether judges can still opine on the constitutionality of a law after Section 33 has been invoked. That makes it necessary to return to first principles, including the text of the law and its underlying purpose.
Robert Leckey, Eric Mendelsohn, and Grégoire Webber are on the side of the debate that says, yes, judges can opine even if they must uphold the law.Leckey, it should be noted, has been appointed to the QC Superior Court (and is almost certainly destined for the QC Court of Appeal and possibly eventually the Supreme Court of Canada. They point to Section 33’s limitation of declarations to five years, which is also the Charter-guaranteed time between elections. They cite this as evidence that voters are meant to have a voice in whether lawmakers who invoke the clause were justified in doing so. And, they reason, having public judicial reasons weighing in on a law’s constitutionality is a useful input in helping to inform voters’ decisions. The judge in Saskatchewan agreed and pointed out that the text of Section 33 does not include any words that might remove the otherwise inherent jurisdiction of the court.

The Supreme Court of Canada is shown in Ottawa, Nov. 28, 2022. Sean Kilpatrick/The Canadian Press.
On the other side of the debate are scholars such as Geoff Sigalet who contend that Section 33 serves as a necessary preventative tool to overcome the “shortcomings of an overly judicialized rights discourse,” and as such its purpose is to allow legislatures to also have a say over the interpretation and delineation of rights. To bolster his argument, he cites the subjunctive mood of Section 33, which says that the law in question “shall have such operation as it would have but for the provision of this Charter.”
Or, to put it simply, this means that the law would work as usual, free from any Charter-imposed limits. Because to Sigalet, this implies a “counterfactual world” created by Section 33 where the Charter does not interact with the law at all. The courts must treat shielded laws as though Sections 2 and 7 through 5 of the Charter don’t exist—and therefore butt out entirely.
Regardless of how Section 33 ought to be interpreted, the underlying politics of the Saskatchewan and Quebec laws might usefully tug the Court’s instincts in opposing directions, potentially helping to prevent ends-driven reasoning. Quebec invokes the notwithstanding clause as a matter of course to all of its laws; the clause allows it to carve out autonomy by evading the application of the Canadian Charter. With two levels of courts in Quebec having rejected the availability of judicial review after the clause is invoked, the Supreme Court—and its Quebecois Chief Justice Wagner in particular—will be extremely wary to rock the boat by finding that judges can still opine on whether laws like Bill 21 violate parts of the Charter, even if they must be upheld.
Meanwhile, in Saskatchewan, counsel for EGALE, the LGBTQ group challenging Premier Moe’s pronouns policy has been at pains to emphasize what they see as the potential harms faced by transgender youth because of the policy, and that might be expected to pull what Chief Justice Wagner has called the “most progressive [court] in the world” in the opposite direction. This should force the court to think deeply about the text and purpose of Section 33.
More broadly, the case is important, not just because it seeks to clarify a truly ambiguous constitutional question, but because the outcome will have real consequences for the balance of power between the courts and legislatures. The notwithstanding clause, once deemed a “dead letter” outside Quebec, is back in vogue provincially, with invocations popping up across the country.
And Canada’s most popular federal politician and likely future PM, Pierre Poilievre, has openly mused about invoking the clause for the first time federally to uphold stacked life sentences for the most egregious criminals, such as Quebec City mosque shooter Alexandre Bissonnette. The ability to shut down judicial chatter completely about a given law or policy is a powerful potential superpower for legislatures.
Ultimately, one’s view of whether judges can opine despite Section 33 may come down to whether one is more fearful of Section 33 enabling legislators to become drunk on power and act recklessly, or of judges becoming drunk on power and interfering with the democratic process. Either way, the decision will have major consequences.