The Trump era demands we rethink Canada’s constitutional ‘nuclear option’

Posted on March 31, 2026 in Governance Policy Context

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TheStar.com – Opinion/Contributors
March 30, 2026.   By Justin Ling, Staff Columnist

Imagine a Canada ruled by a “mini-Trump.”

It’s not so implausible, lawyer Frédéric Bérard told the Supreme Court last week. Western nations are teeming with clones of the American president these days. If such an illiberal leader were to come here, Bérard argued, we would simply have to hope that our politicians do the right thing.

“Because everything that is happening in the United States, more or less, could happen here in a perfectly constitutional manner,” he said — thanks to the notwithstanding clause.

Bérard’s comments came in light of the case against Bill 21 which pits a number of minority groups from Quebec against the Quebec government’s ban on religious symbols for many public sector workers.

But in the fracas of competing interests — between Quebec and the rest of Canada, between the federal government and provinces, between multiculturalism and assimilation — we should keep Bérard’s warning in mind. Bill 21 forbids public-sector workers and elected officials from wearing the hijab, turban, kippah or other visible religious symbols while at work. On plain reading, the law is unconstitutional. It violates Quebecers’ freedom of religion and freedom of expression, their right to be elected to a legislative assembly, and the right to be free from discrimination based on religion — rights found in both the Canadian and Quebec charters of rights and freedoms. And as a 2024 study from the National Council of Canadian Muslims suggested, Bill 21 has already relegated Muslim women to “second-class citizenship.”

But thanks to Section 33 of the federal Charter — which allows our politicians to enforce any law “notwithstanding” many of the rights in the Charter — the court’s hands are tied. The law has remained in effect.

The Supreme Court’s task here is not an easy one. They must decide whether to recognize, as Quebec asks them to, the state’s nearly unfettered power to set aside our rights by a simple vote of Parliament. If the Court does anything else, it risks sparking anger from those wary of our federal system — Quebec and Alberta, in particular.

But this case is extraordinarily important. Because if we allow this worsening status quo to continue, we risk undermining our own constitutional order in ways we cannot yet fully grasp.

The issue at play in this case is not Section 33 itself. It is, as anyone can plainly see, a piece of our constitutional fabric. As Isabelle Brunet, counsel for Quebec government, told the court: The notwithstanding clause was the result of a “historic political compromise which allowed for the repatriation of the constitution and the insertion of the Charter.”

The question is not whether Section 33 can be used, however, but when and how. In the 35 years after the Charter was adopted, the notwithstanding clause was used 16 times — many of those times to protect Quebec’s language laws. In just the past six years, however, various governments have used it nine times. New Brunswick used it to push through mandatory vaccination orders; Ontario, to prohibit third-party election advertising outside of elections; Saskatchewan, to stop students from using their chosen pronouns in school; and Alberta, to force striking teachers back to work.

Even Conservative party leader Pierre Poilievre said last year that he wants to use the tool to reimpose stiff prison sentences previously declared unconstitutional.

Quebec and several provinces assert that these uses are perfectly valid and should not even be reviewable by the courts at all. The main litigants and the various attorneys general are joined by more than five dozen advocacy groups and organizations intervening in the case. Some of those interveners assert that provinces are free to use Section 33 however they like, but that the courts are also free to issue declarations explaining how our rights are being violated. This is, more or less, the status quo.

The Government of Canada, thankfully, went further. Citing the fact that any use of the notwithstanding clause must be renewed every five years, they argue that the law cannot be used to permanently suspend rights — and that the courts must review its use on a case-by-case basis.

Some of those arguing before the seven justices hearing the case went further.

Bérard submitted that Section 33 cannot be a “blank cheque to legislative assemblies to, preventatively and en masse, suspend fundamental rights, refusing all forms of judicial oversight.”

We shouldn’t limit our imagination to how the notwithstanding clause could be used and abused. Ottawa could use the notwithstanding clause to re-legalize solitary confinement, which the courts have found constitutes torture. PEI could use it to forbid all peaceful protest. Quebec is already planning to use the law to ban public prayer.

“Let’s say there’s a tyrant,” Chief Justice Richard Wagner posed to Brunet. This bad actor has been elected by the people, they command a majority in Parliament, and they begin using the notwithstanding clause to eviscerate Canadians’ Charter rights. “What’s your response to this type of argument?” Wagner asked Brunet.

“We have to have faith in our democracy,” Brunet insisted. It’s not just the courts who uphold the constitutional order, she said, it’s “elected officials and the voters.”

Indeed, that’s the core of the provinces’ arguments. They argue that if the notwithstanding clause is being used to trample minority rights, then the voters will punish the responsible governments. The sad truth at the heart of this argument is that voters have proved generally disinclined to punish political parties who use and abuse the notwithstanding clause. Bill 21 is a clear example. The ideas behind Bill 21 remain popular, and versions of Bill 21 were introduced both by previous Parti Quebecois and Liberal governments. That’s the problem.

“Since when has the popularity of a law precluded the relevance, the necessity and the imperative character of constitutional review?” Bérard asked the court. “That’s where we’re at.”

And he’s right. And so, if the minority is ever to be protected from the majority, the courts need to limit how Section 33 is used.

The Supreme Court, more or less, rejected this argument in a similar case in 1988. But, Bérard’s clients submit, things have changed. The rise of populism and the growing appetite to override the Charter have, they argue, turned the notwithstanding clause into a dangerous tool. And, today, the court does seem to be grappling with the risks of allowing the trend to continue.

This case will not be the final word on the notwithstanding clause. The Supreme Court is also set to hear a challenge to Saskatchewan’s use of Section 33 to save its attack on students’ ability to choose their own pronouns. The court will look different when that case comes up: Justice Sheila Martin is retiring in May, while justices Mahmud Jamal and Mary Moreau — who are not hearing this case — are likely to be back. (Jamal is a past director at the Canadian Civil Liberties Association and recused himself because the CCLA is intervening in the Bill 21 case. Moreau is sitting this one out to avoid the possibility of a tie verdict.)

But if there is to be any hope that we can arrest that skid towards illiberalism, we need courts that can check political power — particularly when wielding that power is popular. Because that’s the thing about the decline of constitutional order, Bérard told the court: You rarely know when you’re in it. How many Americans predicted, in 2015, that Donald Trump would sideline the courts and dispatch soldiers to the streets? How many Hungarians predicted President Viktor Orban’s campaign to make the courts subservient? Few of our cousins in other liberal nations “thought that, one day, there would be this kind of skid,” Bérard said.

“Am I telling you that Canada is living its Donald Trump moment? I’m not sure,” he said. “I hope not.”

https://www.thestar.com/opinion/contributors/the-trump-era-demands-we-rethink-canadas-constitutional-nuclear-option/article_f7c1a626-6e96-4e8e-9e51-dd00916d8c1b.html?source=newsletter&utm_content=a01&utm_source=ts_nl&utm_medium=email&utm_email=0C810E7AE4E7C3CEB3816076F6F9881B&utm_campaign=top_33281

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