The Decibel - The landmark case over rights and freedoms at the Supreme Court

Episode Date: March 23, 2026

Today, a case involving Quebec’s use of the notwithstanding clause is going before the Supreme Court of Canada. In the last decade, many provinces have used the clause to override federal powers to pass controversial laws. While cases involving the notwithstanding clause have been taken to the Supreme Court before, none have had the magnitude of being precedent-setting that could have major implications for the Charter of Rights and Freedoms. The hearing will be one of the longest at the country’s highest court in a decade. The Globe’s justice reporter, David Ebner, explains how the clause came to be, why provinces have used it, and whether the case will change the power balance between provincial and federal governments in Canada’s charter. Questions? Comments? Ideas? Email us at [e-mail] Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

The Supreme Court of Canada is scheduled to start one of its biggest cases in decades. Normally hearings last a day at the Supreme Court. Two days is considered long. This one will last four days. The case centers around Quebec's secularism law, also known as Bill 21, that prohibits public sector workers from wearing religious symbols. But the heart of the case is the notwithstanding clause. The notwithstanding clause is part of the Canadian Charter of Rights and Freedoms.

It allows politicians to override, effectively ignore a bunch of the other rights in the Charter, and that includes big ones like freedom of religion and the right to equality. It was meant to be a rarely used tool, but lately several provincial governments have been using it with much controversy. It's the biggest weapon in the charter, and it's never really been put under a microscope at the Supreme Court of Canada. like it's going to be this week. Today, the Globe's justice reporter, David Ebner, takes us through this case before the Supreme Court. What might come of it?

And whether Canada's top court can put limits on government's ability to override rights in the charter. I'm Cheryl Sutherland, and this is the decibel from the Globe and Mail. Hi, David. Thanks so much for being here. Hey, Cheryl, great to be back. Thanks for having me. So, David, the case before the Supreme Court has a lot to do with the notwithstanding clause, which I think a lot of us have probably heard about.

But can we start by going back in time? Why was the notwithstanding clause created in the first place? The history lesson, I think, is a really useful way to think about these things. How did we get here and to understand where we started? So in the early 1980s, a little history lesson here, the federal government under Pierre Trudeau sought to patriot the Constitution. Back in 1867, the creation of Canada was an act of the British Parliament, and patriation was to bring the Constitution home.

to Canada. And a key part of that deal was a creation of a charter of rights and freedoms in the Constitution. That was one of Trudeau's biggest goals. But at the time, provincial premiers, whether they were conservatives or NDP, they worried about losing power. They were worried about the courts having the final say in striking down laws that they had written with this new charter and this Constitution back in Canada. And so with the charter, the premiers insisted on what was called then and now, the notwithstanding clause. And the goal was to give politicians the final says, where they could protect laws from court challenges. And Pierre Chudeau, looking to get the whole deal done, he reluctantly agreed.

He told the House of Commons at the time, I agreed to a lot of things that were not my first choice. I was looking for a consensus, and I got a consensus. Can you dive deeper into this history? And what exactly the provinces were worried about when it came to this Charter of Rights and Freedoms and not having a notwithstanding clause? Like, what were they trying to balance here? It was all about political power. and having the final say. In terms of Canadian democratic history

were parliamentary democracy, where parliament enacts the laws, they're elected. And a number of premiers, again, conservatives and NDP premiers at the time, were worried that the courts would effectively be in charge once the charter was part of the constitution, and they would pass laws only to see them struck down by the courts. And they wanted a mechanism by which they could basically skirt the courts

and that they could pass laws if they so believed were necessary that would not be knocked down by the courts. What was the fear if the courts had the final say? You know, it says the elected will of the people. Judges aren't elected across top courts in the country, Supreme Court, and otherwise, the federal government appoints those judges. Most of those judges are pretty anonymous. No one knows who they are.

They're certainly not elected, you know. And so the elected politicians believe the final say in a parliamentary democracy should belong. to the elected politicians. Okay. So when the notwithstanding clause was created, the idea was that it would be used rarely, right? Is that true? That was, you know, in theory. The federal liberals at the time didn't really want to include it at all. And Jean-Cretchen, former prime minister, of course, he was justice minister at the time. He talked about how it would be rarely used. It would be for emergencies only. And that was the general vibe for many years. You know, this is something that is available if necessary, but it would be basically unused. There would be no reason to use it.

Yeah. So the idea was that it would be unused, but it wasn't written anywhere in the clause that it would be rarely used. Like, this was just a thought that was out there. Exactly. You know, if we look at the wording of the notwithstanding clause, it's section 33 of the charter. And it says parliament or provincial legislatures. If they want to pass a law, they can include the clause. And it, would, quote, operate notwithstanding a provision included in Section 2 or Section 7 to 15 of this charter. You have to reenact it every five years, but otherwise there's no stated limits in that how many times you can use it or for what reasons can you use it or do you even have to come up with reasons to use it or do you need a certain number of people in the legislature to vote in favor? There's no restrictions at all, basically. What are the rights mentioned in the clause, Section 2 and 7 to 15?

You know, it's not the entire charter, but it's a lot of it. I'll just go through them specifically. Section 2 is big. These are the ones that people would know very well. Freedom of religion, freedom of expression, freedom to gather in public to protest. Section 7 is the right to life and liberty. Sections 8 through 14, those are legal rights. So things like having a lawyer when you're arrested or the right not to be denied,

reasonable bail if arrested. And then section 15 is equality rights. And I have to say, you know, governments haven't over the years overridden these rights very often. You know, there's no law that says when you're arrested, you can't have a lawyer. But it is an option available to governments. And back in Quebec, the questions of freedom of religion and equality rights are at the fore right now. Yeah, these are really important rights that could be overridden by this notwithstanding clause. And as you've laid out, this clause was created with the thought that it wouldn't be used.

But then, of course, it was, right? Let's go through some of the times it was used early on. Which government was first to use it? The history of the clause is generally one of it not being used. So in the 1980s, Quebec used it a bunch, counter to the rest of the country, and Quebec was using it really as an act of political protest. They were shut out of patriation. They weren't in favor of it at the time. And so in response, once it all happened, they used the notwithstanding clause and essentially all of their laws, just to say, you know,

we are protesting. And then for many years, again, it was unused. Albertan 2000 used it in a same-sex marriage bill, but this was before same-sex marriage was actually legal in Canada. And so that usage ended up being symbolic. It expired in 2005 when safe and sex marriage became legal nationally. But essentially, like Jean-Cretchen predicted, it would be politically very difficult to use the clause,

and the political culture for decades respected the effective convention that it was not to be used. Yeah, so yeah, like you laid out there. Quebec used it as a protest and, you know, Alberta used it, but it was very symbolic. So aside from these uses, the clause was unused for decades. But, I mean, can you help me understand why that is? Because it does seem like a very powerful tool at the hands of governments. You know, I would say that what sort of law are you passing if you need to violate the right to equality, for instance? You certainly wouldn't remove someone's right to have a lawyer if arrested. And so any sort of law that might violate these rights is perhaps, you know, not an up-the-middle law. And so the years passed and it just didn't turn out politically necessary in various people's eyes to use the clause. And eventually time passes and people got used to the idea of it's sitting there, but it's not to be used. And that was it.

I can also imagine that this is kind of seen as political kryptonite, right? that if you were an elected official, you don't want your people thinking that you were passing a law that would violate their rights? For a long time, that's exactly right. You know, it's a bad look, as it were. Yeah, we have to pass this law. We need to use the notwithstanding clause because we're violating our citizens' rights. That in itself does not sound good.

Eventually, the taboo was broken, but for many years, that was it. Politicians were standoffish and worried about potential consequences. Okay, let's fast forward to around 2018. So we start to see a shift. And the clause does start getting used more often. Remind us of some of the recent times it's been used. So it started in 2018, as you mentioned. Doug Ford was elected Premier of Ontario, a progressive conservative. And he's not really the type of guy that is bound by convention.

And very soon after being elected, he started talking about using the clause. Through the years, he's more talked about it than really used it. Quebec was the big one in 2019. Premier Francois-Francoe, as you. we mentioned in the introduction, was pursuing a goal of secularism, a government that is a secular entity. And he passed, his government passed Bill 21, which, as discussed, prohibits public sector workers like teachers from wearing religious symbols on the job. And that includes everything from Christian crosses to the Islamic hijab.

And then that set off, you know, a bit of a trend. It was still, it's not something that was going to be everyday usage, but it's become more and more common. Saskatchewan, and Alberta most recently have used it in laws to put restrictions on transgendered youth. And Alberta last fall used it in four laws in just a number of weeks. And so we went from basically it never being used to being relatively commonplace. You know, it's not an everyday occurrence. Is it still a significant step? But conservative-led provinces have long got over the taboo of using it.

Yeah, what is it about that? Because it seems as though there's been a shift, right? And at one point, it was seen as political kryptonite. And yet now we're seeing it being used more often. What changed in society? You know, I don't want to pin it on Donald Trump, but the election of Donald Trump in 2016, you know, had waves around the world. And one of them was that, you know, the kind of niceties of the past weren't necessarily ironclad rules. And then Francois LeGo in Quebec, Bill 21, Bill 21 was relatively popular.

It was, you know, roughly speaking, aimed at minorities. But the majority liked the vibes of the bill. And then Lago was reelected in 2022. So he didn't pay a political cost. The one tiny restriction in the charter on the Nautw's Sending Clause is that it needs to be reenacted every five years. And the idea in the early 80s was, you know, if a government uses this clause, they would face the electorate at some point. Well, Francois Lago faced the electorate in 2022 and won. And so other politicians see that.

happen and they're like, well, we're going to catch some flack in the press, in the public debate, the opposition parties are going to debate this, but, you know, we can still be reelected. And so it turned out, you know, not as radical as it might have sounded to be used. So it seems to be mostly conservative governments using this clause. What's going on there? Section 33 is not necessarily a conservative or liberal, small L, liberal or small C conservative device, but it has all been conservative provinces in the recent trend of since 2018. Back in the day, the Saskatchewan NDP, when the charter was being drawn up, they were

quite insistent on including the notwithstanding clause. I think at the time, you know, kind of a left-wing government was thinking about, you know, if we want to enact some sort of socialist policies, we don't want them to be struck down by the courts in some way. And so at the time, you know, it was a bipartisan. desire for the clause among premiers, but how it's turned out in these modern times is it's quite conservative. And we should also say that the federal government is also able to use this clause, right? But they haven't so far. Exactly. It's become a big provincial thing. And from the beginning, it was the provinces that wanted to have the clause. And they're the ones that have

ended up using it. Pierre Pauliev a few years ago promised to be the first prime minister if he had been elected last year to use the notwithstanding clause. His plan was to use it on bail. And so normally if you're arrested, you have a right to a bail hearing. You don't have a right to get bail, but at least to a hearing. And Pierre Polyev was looking to limit that in some way. Obviously, he wasn't elected, and so we never got an exact policy. But it was potentially going to be used at the federal level for the first time. We'll be right back. So, Dave, let's talk about the specific case that's before the Supreme Court today. As we've talked about, this is about Quebec's Bill 21, the secularism law. And as I mentioned, this hearing is long, right? It's going to last

four days, which is kind of unheard of when it comes to Supreme Court cases. Why is that significant? You know, the big thing that makes this a landmark case is the stakes, you know, government powers versus Canadian rights. And for the first time, our true, full-on examination of the notwithstanding clause by the Supreme Court. And the stakes of the case is reflected in every aspect. And the four days of hearings is one of those. You know, as you mentioned, one day is a typical Supreme Court case, even a big one. They go through it in a day. There's a lot of written material beforehand. Two days, you know, happens occasionally. But four days is in the historic level. The Quebec Secession reference case in 1998 that was discussing the terms of potential separation of Quebec from Canada.

That was also four days. So that's the realm we're operating in here. So what exactly is being decided on? So the main stakes of the case is Bill 21. Quebec's defending the law and all the various challengers of which there are six official appellant groups, they want to see the law struck down. And entwined in that question is the notwithstanding clause. How could it be that the law would be struck down? So that's the legal wrestling match happening right now. I think right now it's useful to look back at the last court decision on this case.

And that was the Quebec Court of Appeal in 2024. So that's the top court in Quebec. And they unanimously upheld Bill 21, and they based that decision on the notwithstanding clause. The notwithstanding clause protects the law from court challenges on issues such as freedom of religion and the right to equality. And so if those rights are being violated by Bill 21, which, you know, seems like they might be, the notwithstanding clause access to shield, and that's that. And the Quebec Court of Appeal looked back to the one Supreme Court case that really discussed the notwithstanding clause. This was in 1988. It was a bigger case and the discussion of the notwithstanding clause was only a small part of the result. But the court back then basically said

there are no limits on how governments want to use the clause. There's no role for the courts. Governments don't have to justify themselves, period. And so the Quebec Court of Appeal using that precedent said all clear on Bill 21. And now it's in the court, literally, of the Supreme Court. You know, presidents are binding, but they're not ironclad. You know, the Supreme Court definitely will chew over that precedent this week, you know, whether they adjust it or whatever, we'll have to see. Tell me more about that, because this precedent setting case in 1988, the language is very clear, right?

And what you mentioned there is that they're binding but not ironclad? So, I mean, what could the Supreme Court do? Like, what is its job here? And what do they have the power to do? Yeah, the court's job is to hear all the various arguments to interpret the charter and the constitution and how all of it flows together. And also consider the precedent from back in the day. None of the judges on the court today were there back then. And I would say, and a lot of experts would say that I've spoken with, the 1988 precedent, you know, it didn't really consider all the various

questions. Basically, it said, yes, it can be used and there are no real limits. But there wasn't a full debate back then. The case wasn't solely about the notwithstanding clause. So this is really really, after all these years, this is really the first time that the Supreme Court is going to think of all the many angles and every little corner of the potential legal arguments are going to be worked over. I have a question because it's really interesting what you say is that it wasn't fully debated in 1988, right? And I'm curious then, does that mean that perhaps at this case, could they reinterpret what the notwithstanding clause says? It's definitely possible. That's what a lot of the challengers want. The challengers have said, you know, the notwithstanding clause was improperly used by Quebec, or that if you interpret the notwithstanding clause properly, you know, it can't be used in this way.

And so the Supreme Court will consider those things. And with precedent, you know, precedent's precedent, but it can be overturned. A good example is medical assistance in dying. Euthanasia was at the Supreme Court in the 1990s in the Sue Rodriguez case. And it was narrowly defeated 5-4 at the time. And then roughly 20 years later in 2015, the Carter case, a 9-0 Supreme Court overturned that precedent. So precedent doesn't mean things can never change. And in this case, you know, I wouldn't say precedent necessarily will be overturned.

But, you know, precedent might be shaped and sharpened. And it will loom large over the case this week for sure. And just to be clear that justices can't strike down the notwithstanding clause itself. right? You know, no, no, absolutely not. Like, the clause will exist in the charter as written, but, you know, the Supreme Court does have it within its power to say the clause says this, but these are the new boundaries of using it, perhaps. Hmm. So given everything we've been talking about, Dave, what options do the justices have in this case? You know, striking down Bill 21 seems a little unlikely because, again, the notwithstanding clause was used by Quebec exactly as designed.

People might not like it, but it was used exactly as designed. And to see Bill 21 struck down somehow because it was used incorrectly would be a little hard to see as an outcome. But we'll see, of course. The one big potential change, and much more likely probably, is what are called judicial declarations. And this would be a judge saying a law violates a charter right, even if the law is allowed to stand because of the notwithstanding clause.

It's a sort of middle solution. You know, you could go to court and say, my right. rights are being violated. And then the courts could say, yes, your rights are being violated. But because of the notwithstanding clause, the law would still stand. So the politicians would have the final say, even as the courts also get a say. And the court judgment would add to the democratic debate. And a lot of groups are in favor of this, including the federal liberal government. And then perhaps predictably, the conservative-led provinces like Quebec and Ontario and Alberta are strongly against any of this. A judicial declaration is interference in the political process.

Once the notwithstanding clause has been used, you know, the notwithstanding clause means zero role for the courts in the view of a number of people. But what do judicial declarations actually do? Like, what would that change? Nothing in a way in terms of, as an example, let's say with Bill 21. A court in Quebec could say Bill 21 is a flagrant violation of freedom of religion. It's a flagrant violation of the right to equality, period. The law still stands because it's using the notwithstanding clause. But as a court, we've heard all the evidence and we make this declaration. So obviously that would be news that day. You know, the court comes out with that decision, you know, and it wouldn't just disappear. It would be discussed and debated.

Potentially it would be part of the next election. And so courts would get a role. But again, you know, the law would still be there. Yeah, the law still stands. You know, you wear the hijab in Quebec. You couldn't teach. Just because the court said your rights are being violated, the court didn't actually do anything about it. Right, exactly.

So I guess maybe potentially the idea would be that there's something that they could say at the moment and perhaps when the election happens another time that things could change then. Yeah, exactly. And that would be the idea. You add to the debate and maybe you make it a little more difficult to use the standing clause. This is as guesswork. But if the Supreme Court did endorse judicial declarations, you know, does a future government or government next month think that like, well, we're thinking about using this clause. but we might end up getting a lot of blowback in court and a court might rule that we're violating rights

and our political calculus is, well, we want to push in this direction, but we decide not to. Or perhaps it has no effect. You know, you ride through controversy and you push forward. You know, a lot of these laws in Quebec or in Alberta have supporters, even as they have detractors. And so it would adjust the political calculus, whether it radically changes things, I'm not sure.

The federal government is also calling on the Supreme Court to create some restrictions on the use of the clause. Can the court even do that? Well, it certainly could, but this is the one where it's a little more radical. So last September, all the various groups that were a bit of a side party to the case, including the various governments, filed their legal arguments. And Ottawa's proposal was that the Supreme Court should put some limits on repeated use of the clause. The idea was that if the clause is renewed over and over again, like, do those rights actually even exist anymore? Because there's a limit, but you can also renew it as much as you'd like, right?

Yeah, at the five-year mark, you renew it. And then, let's say, at the 10-year mark, you renew it. And then what if you get to the 20-year mark or the 25-year mark, is there freedom of religion if it just keeps getting trampled? And so that was Ottawa's argument. They didn't say what those limits should be. It's not exactly clear, though, what the Supreme Court would do with that. They are effectively being asked by the federal liberal government to, you know, write a few more lines into Section 33.

Section 33 says this, but now the Supreme Court says there are some sort of limits. It would be quite a stretch. And after Ottawa made its proposal last September, you know, I wouldn't say it was a total outrage, but conservative provinces were angry and upset. And they were angry and upset enough to demand that Ottawa withdraw its proposal from the Supreme Court. Ottawa didn't withdraw it, but, you know, there was a lot of umbrage to suggest that there should be some limits on the notwithstanding clause. What are the potential ripple effects from this ruling? Like, what does it mean for other uses of the notwithstanding clause? Whichever a way it goes, it's going to have a lasting impact for years. You know, I'm not really sure how much change there could be.

Bill 21, let's say, is upheld. The notwithstanding clause is roughly speaking endorsed. Maybe the door is open to judicial declarations. But what? What's certain is this ruling will be a true precedent. It's going to set the new ground rules and it's going to be in effect for many years to come. And it's hard to predict or no, but maybe the clause falls out of favor again. Or maybe its usage is turbocharged after a ruling. But whatever happens, you know, the new ground rules will be set and the debate will effectively be settled. Dave, always a pleasure to have you on the show.

Thanks so much for coming on. Likewise. Thanks for having me, Cheryl. Have a good one. That was David Ebner, the Globe's Justice Reporter. That's it for today. I'm Cheryl Sutherland. Our intern and associate producer is Finn Dermot. Our producers are Madeline White, Rachel Levy McLaughlin and Mahal Stein.

Our editor is David Crosby. Adrian Chung is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening.