When governments trample on our rights, the courts must be free to weigh in. Full stop

Posted on September 30, 2025 in Governance Debates

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TheStar.com – Opinion
Sept. 27, 2025.   By Emmett Macfarlane, Contributor

The Supreme Court will soon hear arguments in a legal challenge to Quebec’s so-called secularism law, Bill 21. The legislation, which prohibits public-sector workers from wearing religious symbols on the job, remains a flagrantly unconstitutional assault on minority rights that perverts secularism by abandoning state neutrality with respect to religion and imposing irreligion on minority faiths instead.

Although Bill 21 undeniably violates the Charter of Rights and Freedoms, the Supreme Court can’t invalidate it on that basis due to Quebec’s invocation of the notwithstanding clause, which allows Parliament and provincial legislatures to temporarily preserve laws that otherwise offend the Charter. Consequently, the litigants and interveners opposed to Bill 21 must convince the court either that it violates a Charter right (or other constitutional provision) to which the notwithstanding clause doesn’t apply, or else that new limits should be imposed on use of the clause itself.

Debate over the notwithstanding clause has intensified in recent months, owing to its controversial use by the governments of Ontario, Quebec and Saskatchewan, as well as to our highly charged political climate. Alberta Premier Danielle Smith has reportedly contemplated using it to shield a set of discriminatory policies that would prohibit trans girls from playing girls’ sports, limit access to gender-affirming health care and prevent students from adopting new names or pronouns absent parental consent.

The notwithstanding clause is a valid legal instrument and a key part of the Charter, designed to preserve some element of parliamentary sovereignty. Progressive provincial politicians such as Allan Blakeney, in Saskatchewan, were proponents of its inclusion. (Blakeney was concerned that the courts might prevent the expansion of the welfare state). Still, as with any extraordinary power, it’s important to recognize that there are good and bad reasons to use this one.

It’s possible to imagine legislatures invoking the clause to protect their constituents’ rights in the face of faulty judicial decisions. For example, some argue Parliament should’ve used it in response to court decisions that emphasized the rights of the criminally accused over the rights of sexual-assault complainants in the 1990s.

Yet some recent provincial uses amount to little more than vicious attacks on minority rights, often in pursuit of dubious objectives. This has prompted opponents of the clause to argue that the courts should impose new limits on how it can be used. Some have suggested the judiciary employ “unwritten constitutional principles” to limit the clause; others contend the Supreme Court should revisit an old ruling that states there are no restrictions on using it pre-emptively, that is, before the courts have had a chance to rule on the constitutionality of a given law.

Controversially, the federal government’s recent submission to the Supreme Court in the case of Bill 21 suggests that the courts may be able to place limits on how many times the notwithstanding clause can be renewed, although the text provides for no such limits (it simply states that in order to remain in effect, the clause must be renewed every five years, a legislature’s maximum lifespan).

Asking the courts to invent and impose new limitations on the notwithstanding clause is tantamount to demanding that judges unilaterally amend the Constitution, which is hardly a good response to the inappropriate use of this power.

There’s another important issue that the Supreme Court may be asked to settle, too: Can courts still declare whether a law that’s subject to the notwithstanding clause is unconstitutional? Doing so would have no effect on the law’s operation as long as the notwithstanding clause applied, but as a judicial declaration, it would constitute an authoritative statement, alerting the press and general public to active government efforts to violate Canadians’ rights.

Those who most ardently defend the notwithstanding clause object to this idea; they claim that merely invoking the clause somehow prevents judicial review. It doesn’t. And the defenders are just as guilty of distorting the Constitution as their opponents are. It’s one thing to believe that the courts sometimes get it wrong or shouldn’t always have the final say. It’s quite another to suggest that the notwithstanding clause is meant to silence the judiciary entirely.

Emmett Macfarlane is a professor of political science at the University of Waterloo and co-author of the 2023 book Legislating Under the Charter: Parliament, Executive Power and Rights.

https://www.thestar.com/opinion/contributors/when-governments-trample-on-our-rights-the-courts-must-be-free-to-weigh-in-full/article_8dcffd60-1de0-472d-bc04-3bbaa177f92e.html

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