The Saskatchewan Court of Appeal ruled the provincial government’s use of the notwithstanding clause did not preclude judicial review of a controversial law regarding gender identity.Heywood Yu/The Canadian Press
Whichever way it leans, the Supreme Court of Canada’s ruling on Quebec’s secularism law will be one for the ages, with profound repercussions for the country’s constitutional order.
The top court is, in effect, being asked to alter the balance of power between the judicial and legislative branches of government that has existed since the 1982 adoption of the Canadian Charter of Rights and Freedoms by overturning long-standing precedent.
At issue is whether the Constitution’s notwithstanding clause, which Quebec invoked to shield its 2019 Act Respecting the Laicity of the State from court challenges, precludes judges from issuing declarations about the specific Charter rights violated by the law.
Until recently, most legal experts held that the use of the notwithstanding clause, contained in Section 33 of the Charter, precluded judicial review of laws shielded by it. This view is based on interpretations of a 1988 case, known as Ford v. Quebec, in which the top court held that Section 33 “lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy” in question.
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The Quebec government has insisted that the notwithstanding clause – which it typically refers to as the parliamentary sovereignty clause – is critical to protecting the province’s distinct culture in the face of the Charter’s homogenizing norms. The current Coalition Avenir Québec government that adopted the secularism law, commonly referred to as Bill 21, has held that la laïcité is a fundamental aspect of Quebec’s distinctness that justifies its use of the notwithstanding clause.
The law’s most controversial feature is its ban on the wearing of religious symbols by certain categories of public employees, including teachers. Bill 21 thus precludes school boards from hiring teachers who wear a hijab, kippah or turban.
The law’s opponents contend this is a blatant violation of freedom of religion, among other rights guaranteed by the Charter, and want the court to call it out as such. Short of outright striking down Bill 21 – an improbability, as long as the law is shielded by the notwithstanding clause – they are asking the top court to issue a “declaration” specifying which rights Bill 21 breaches.
“Individuals are entitled to know whether government action improperly infringes upon their rights,” the Federation of Ontario Law Associations, which has been granted intervenor status, says in a motion. “The electorate is entitled to know whether government action is consistent with the Charter in order to meaningfully evaluate their elected officials.”
The Quebec government opposes any such declaration, insisting this would be inconsistent with the Supreme Court’s own precedent in Ford v. Quebec and the Quebec Court of Appeal’s 2024 decision on Bill 21. The latter relied on the 1988 Ford ruling in declaring that Bill 21 was shielded from judicial review.
On Monday, the Saskatchewan Court of Appeal came to a different conclusion in a case involving a provincial law requiring parental consent for students under 16 to change their gender identity at school. In its 4-1 decision, the court ruled that the provincial government’s use of the notwithstanding clause does not preclude judicial review of this controversial law and that it is within the jurisdiction of the courts to issue declarations on rights violations.
The dissenting judge, Justice Neal Caldwell, countered that “once the legislative branch has invoked the notwithstanding clause, the judiciary would overstep its constitutional role if it were to interject itself into the democratic process.”
Nevertheless, the fact that two provincial appeal courts have now come to contradictory decisions touching on the judicial review of laws shielded by the notwithstanding clause means the Supreme Court must inevitably settle the issue.
Its ruling on Bill 21 will hence carry widespread implications for governments across Canada, either freeing them to employ the notwithstanding clause with impunity, or subjecting them to potential rebuke – in the form of judicial declarations – if they invoke Section 33.
It remains unclear whether the Supreme Court will render its decision before Quebeckers go to the polls next year. Even so, with the Parti Québécois seeking to build on its momentum after another decisive by-election win this week, the Supreme Court case on Bill 21 will figure prominently in the sovereigntist party’s campaign pitch to francophone voters. PQ Leader Paul St-Pierre Plamondon said the Supreme Court’s move to grant leave to appeal to Bill 21’s opponents “confirms to us that the federal regime is determined to combat Quebeckers’ democratic choices.”
How much will the top court take into consideration a potential political backlash in Quebec in determining whether to overturn the Quebec Court of Appeal’s ruling on Bill 21? With the PQ on track for a stunning comeback in the 2026 vote, increasing the likelihood of another sovereignty referendum by 2030, the question has to be on the judges’ minds.