If the Carney government has its way, the Supreme Court of Canada will take up among the most contentious questions of the Canadian Constitution: What’s the role of the judiciary versus the Parliament, and what, if any, constraints should be imposed on Parliament’s use of the notwithstanding clause embedded in Section 33 of the Charter of Rights and Freedoms?
At issue is Quebec’s Bill 21, passed in 2019, which bans certain public servants from wearing religious symbols while performing their work. Civil liberties groups, teachers, and religious minorities argue the law discriminates against Muslims, Sikhs, and Jews, violating Charter protections for freedom of religion, equality, and expression. While Quebec shielded the law from challenge by invoking the notwithstanding clause (section 33), lower courts have issued mixed rulings—upholding much of the law but striking down aspects affecting elected officials. The case is now before the Supreme Court of Canada, making it a pivotal test of both minority rights and the scope of section 33.
When Prime Minister Pierre Trudeau patriated the Constitution in 1982, provinces resisted a Charter of Rights that might empower judges at the expense of legislatures. The compromise was section 33, the notwithstanding clause, which lets Parliament or provincial legislatures temporarily override certain Charter rights, renewable every five years. Though rarely used, Quebec applied it broadly in the 1980s, Saskatchewan during a labour dispute in 1986, and Ontario more recently for wage and election laws.
Sean Fraser, the attorney general of Canada and Liberal MP, has urged Canada’s top court to clarify that the notwithstanding clause cannot be used as a blanket shield against judicial review, especially when laws encroach upon other constitutional principles.
In response, Quebec, Saskatchewan, Alberta, British Columbia, Ontario, and Manitoba have all filed factums defending section 33 for their legislative prerogatives.
The provinces’ arguments are varying and complex, but share the same refrain: section 33 must be protected, not superseded by judicial fiat. Below, we take a closer look at the main arguments put forth by each province to the Supreme Court of Canada, as well as the counterarguments made by the Liberal government.
The federal government’s position
The federal government’s factum argues that section 33 cannot be read as a blank cheque. Ottawa proposes that: declarations must be temporary in practice, with re-enactments subject to judicial scrutiny; courts should retain the ability to issue declaratory judgments that a law unjustifiably violates rights, even if section 33 shields it from remedies; unwritten constitutional principles support a narrow reading that preserves the Charter’s role as a shield for minorities.
“Although the Constitution allows a legislature that invokes s. 33 to avoid temporarily the
binding nature of rights and freedoms, it necessarily prohibits any use of s. 33 that would
lead to an irreparable impairment of the rights and freedoms guaranteed by the Constitution,” the federal government argues. “Accordingly, any right or freedom referred to in an express declaration made under s. 33 must retain its integrity so that it can be fully exercised when the declaration expires—just as a lightbulb should shine as brightly as it did before being temporarily turned off.”
This interpretation, critics argue, would in effect create judicial supremacy, while leaving provincial legislatures only a symbolic override power.
Quebec: Bill 21 and the primacy of text
Quebec’s factum is both defensive and assertive. As the party defending Bill 21, which prohibits many public servants from wearing religious symbols, Quebec insists that section 33 has already been interpreted authoritatively in Ford v. Quebec (1988). In Ford, the Court confirmed that once a legislature meets the textual requirements—an express declaration identifying the provisions being overridden—judges cannot conduct further substantive review of the suspended rights.
Quebec argues that the federal government’s proposal would upend this settled law by effectively amending the Charter through judicial interpretation. To Quebec, the Court should not now rewrite section 33 by grafting on conditions that its framers deliberately rejected.
Alberta: The “hard-won compromise”
Alberta’s factum situates section 33 squarely in its historical and political context. It characterizes the clause as a “hard-fought, hard-won compromise” without which there would have been no constitutional agreement in 1982 to begin with. “Simply put, there would have been no Charter without s.33,” it reads.
Alberta argues that the federal government’s attempt to narrow section 33 through judicial interpretation amounts to constitutional amendment by stealth. To impose unwritten limits would be to upset the delicate balance struck during patriation and to give to courts a power that rightfully belongs to legislatures.
The Wild Rose province also defends the pre-emptive use of section 33. Critics have argued that legislatures should only invoke the clause after a court has found a law unconstitutional. Alberta responds that nothing in the text or history of section 33 requires such sequencing. On the contrary, the ability to override at the time of enactment was understood by the framers as part of the democratic bargain.
“An effective s. 33 declaration precludes judicial review of legislation based on the substance of the rights covered by the declaration,” the attorney general of Alberta argues.
For Alberta, the Court must respect not only the text of section 33 but also the political compromise that gave the Charter legitimacy in the first place.
Ontario: Democratic accountability over judicial oversight
Ontario’s submissions echo the broader provincial consensus but emphasize the role of democratic accountability. The province’s factum stresses that section 33 was intended to entrust voters, not judges, with the final judgment on a legislature’s decision to override rights.
Ontario warns that the federal government’s approach would transform section 33 into a variant of section 1, where courts balance rights against objectives. That would effectively nullify the override’s distinctive function.
“The very invocation of s. 33 in any law performs a ‘signaling function,’ triggering a
political and public debate. The democratic process whereby the electorate evaluates the
actions and laws of their government does not require the court to opine on an issue that cannot give rise to any effective legal remedy between the parties,” the attorney general of Ontario also argues.
Ontario argues the Charter is not only about rights but also about federalism and democracy. Section 33 was designed to preserve provincial autonomy and legislative choice.
British Columbia: Allowing bare declarations
British Columbia takes a somewhat more nuanced position. The province’s factum, like the other provinces’ arguments, insists that the only legal requirement for using section 33 is the express declaration. There are no substantive preconditions (such as demonstrating a pressing and substantial objective) and no requirement for judicial screening before invocation
However, B.C. acknowledges that courts may sometimes issue bare declaratory judgments—statements of what the Charter analysis would have been absent the override. Such declarations, B.C. argues, serve democratic values by informing the public debate, while still respecting the override’s binding effect. Importantly, these declarations would not carry remedies such as striking down or suspending the law.
“A bare declaratory judgment is a discretionary, non-coercive remedy rooted in
equitable principles,” B.C.’s attorney general argues. “Whether to grant one is a question of judicial discretion that, like mootness, must consider the nature and boundaries of the judicial role.”
This “intermediate position” seeks to balance transparency and accountability with respect for legislative supremacy.
Manitoba and Saskatchewan: Join the chorus defending section 33
Manitoba’s factum emphasizes that section 33 was central to the Charter’s constitutional compromise. At the same time, it argues, like B.C., that the clause does not entirely exclude the courts: post-enactment judicial review can play a role in informing voters about how laws affect Charter rights. As the factum puts it, judicial review would help “voters with reliable and impartial information about the effect of the legislation in question on Charter rights.”
Meanwhile, Saskatchewan has adopted the strictest stance, insisting that once section 33 is validly invoked, judicial review ends. Courts cannot issue bare declarations of constitutional inconsistency, because the override is a political mechanism. Any attempt to let courts opine on suspended rights would mislead the public and undermine legislative accountability.
Common themes across the provinces’ defence of section 33
Despite variations, the provincial arguments converge on four key points.
First, all argue that the only legal requirements are those stated in section 33 itself—an express declaration identifying the overridden provisions. Anything more is extra-constitutional.
Second, the provinces emphasize that the override is ultimately policed by voters, not courts. Legislatures that abuse it will face democratic accountability at the ballot box.
Third, the provinces frame section 33 as essential to preserving a sphere of democratic self-government against judicial overreach and should retain legislative supremacy.
Fourth, the provinces reject Ottawa’s suggestion that unwritten constitutional principles or “Charter architecture” impose further constraints.
Where the provinces diverge is on the question of bare declarations: where courts can make symbolic declarations on whether provincial laws violate the Charter. Saskatchewan says no to bare declarations, while B.C. and Manitoba say yes, and the other provinces remain skeptical.
Generative AI assisted in the writing of this article
