Here again, Canada will be the first site for highlighting these issues. The last few years have been turbulent for the Canadian federal system. There have been a number of intergovernmental conflicts. The best way to start this pivot is to draw attention to my recent publication in the State of the Federation series hosted by the Institute of Intergovernmental Relations at Queen’s University. The chapter (co-authored with Geoffrey Sigalet) is entitled “Equally Sovereign: Alberta and the New Provincial Rights Movement” and features within a collection entitled From Multilateral Failures to Unilateral Successes?

The following is an excerpt of the introduction and conclusion of the chapter:

In 1929, Alberta premier John Brownlee returned to his province from Ottawa with a deal for “Wild Rose Country” to enjoy control over its natural resources. This was supposed to be the end of Alberta’s quest for equal recognition within the Canadian federation. From their founding, and unlike other latecomers such as Prince Edward Island, the provinces of Alberta, Saskatchewan, and Manitoba were denied the same constitutional control over their natural resources as the original provinces of Confederation. But Western struggles over resource control did not stop after Brownlee’s deal: in 1980, Alberta premier Peter Lougheed contested Prime Minister Pierre Trudeau’s regulation of oil production during the OPEC crisis. He did so by simultaneously shutting off sixty thousand barrels of oil production per day and referring the constitutionality of federal taxes on oil and gas to the courts. Lougheed not only won at the Supreme Court of Canada (SCC), but leveraged this judicial decision to help win the 1982 amendment constitutionally entrenching provincial control over non-renewable natural resources. It is worth noting that he obtained this amendment by working closely with Quebec premier René Lévesque. These constitutional disputes are examples of non-judicial actors interpreting and negotiating the meaning of the constitution and its development, both inside and outside courtrooms. They form part of broader historical and modern efforts by the provinces, working together and separately, to articulate and assert their understanding of the constitution and its development.

Alberta’s United Conservative Party (UCP) premier Danielle Smith and her ministers notably drew on Alberta’s constitutional history, including the experience of Brownlee’s resource deal and Lougheed’s resource amendment, when debating the 2022 Alberta Sovereignty Within a United Canada Act (“Sovereignty Act”). Premier Smith made the case for the Sovereignty Act as a matter of protecting the constitutional gains of the past and their development, and accompanied her arguments with a public relations campaign. Therefore, although we agree with political scientists who contend that the Sovereignty Act is arguably a tool for building a cohesive electoral coalition that harnesses Western alienation, its impact goes beyond this. One of the important effects of the Sovereignty Act may be its role in facilitating public education and discussion. It is part of a broader attempt to shape both public and expert opinion about the constitution and its development. In this respect, it targets perceived interference with provincial jurisdiction and the rights and freedoms of Albertans. It may also serve, like Brownlee and Lougheed’s efforts, to set the stage for formal constitutional change.

But it must be acknowledged that the proposal shifted over time. An early version of the proposal, which finds its source in the Free Alberta Strategy, expressly contemplated ousting the role of courts entirely and fully asserting Alberta’s own understanding of the constitution and its development. Premier Smith campaigned on this proposal during the 2022 UCP leadership race. The stated aim of the reformed proposal introduced in the Legislative Assembly is different. The framework provides that once the legislature has expressed its opinion that a federal initiative is unconstitutional or harmful on the basis that it interferes with provincial jurisdiction or the rights and freedoms of Albertans, the province may engage in uncooperative conduct by exercising its legislative and executive powers, which may be subject to judicial review. The stated aim is not to oust the role of courts entirely, although only time will tell if this remains the case in practice.

In this chapter, we begin section one by reviewing the constitutional scheme and the development of the jurisprudence expounded by the SCC to contextualize recent developments. The aim is to outline the relevant legal principles, while briefly highlighting the political forces that helped solidify them. Then, we turn to assessing the Sovereignty Act. In section two, we discuss its evolution and the stated aim of the Alberta government. We trace its origins to the Free Alberta Strategy and explain how the idea as articulated in that document sought to interfere with the role of courts entirely. We show that Premier Smith ultimately reformed this proposal to adapt it to the Canadian federal system. The result of this shift is a Sovereignty Act that appears to assert existing provincial powers in a novel way. In section three we consider what this may mean in practice, using the adoption of the Firearms Act as an example to illustrate that it can be operationalized in a constitutionally compliant manner. We also discuss its potential in facilitating public education and discussion about the constitution and its development, using its first formal invocation as an example.

…

In sum, the reformed proposal does not seek to oust the role of courts entirely. If Premier Smith keeps her word, then the Sovereignty Act represents a provincial attempt to shift the burden onto Ottawa in both the court of law and the court of public opinion. Recent developments, namely discussions about formal constitutional change and secession, suggest that the possibility of more defiant actions appearing in the future cannot be entirely excluded. Nonetheless, at the time of its adoption and the time of writing, the goal appears to be to assert Alberta’s right to be “equally sovereign” within its sphere of jurisdiction and to shape the constitution and its development over time. And however politically wise that goal may be, it remains consistent with existing constitutional principles. While Alberta has not been alone in articulating and asserting its understanding of the constitutional order, as developments in Quebec and Saskatchewan illustrate, it has staked its ground as a leader in the new provincial rights movement.

This post brings to an end the first symposium of the Constitutional Theory Monitor: The Notwithstanding Clause Appeals Symposium.

The symposium has brought together a range of scholars: from junior to senior scholars, from law and political science, from different countries, and from the English-speaking and French-speaking worlds. It has included the following contributions:

1. Introduction to the Notwithstanding Clause Appeals Symposium - Jesse Hartery (Melbourne Law School, Australia; Université de Fribourg, Switzerland)

The Notwithstanding Clause in Legal and Political Perspective

2. The Perils of Speaking Out of Turn - Geoffrey Sigalet (University of British Columbia, Canada)

3. The Public’s View of Section 33 - Andrea Lawlor (McMaster University, Canada)

Beyond Legal Limits to Legislative and Executive Action

4. The Political Limits to Section 33, Quebec and Constitutional Unilateralism - Dave Guénette (Université de Sherbrooke, Canada)

5. Declarations of Incompatibility in Canada and the UK: Are They Really the Same? - Richard Bellamy (University College London, United Kingdom)

The Purposes Underpinning the Notwithstanding Clause

6. Preventing Constitutional Clauses from Disappearing: Keeping Proper Understandings of Section 33 - Dwight Newman (University of Saskatchewan, Canada)

7. Backdoor Constitutional Amendments to the Notwithstanding Clause and the Risk to the Integrity of the Federation - Dave Snow and F.L. Morton (University of Guelph and University of Calgary, Canada)

Judicial Review in Theoretical and Constitutional Perspective

8. Comparisons are Odious - Erin F. Delaney (University College London, United Kingdom; Northwestern Pritzker School of Law, United States)

9. Section 33 and the Constitutional Structure - Jesse Hartery (Melbourne Law School, Australia; Université de Fribourg, Switzerland)

Since time and unexpected circumstances ultimately did not permit some of the potential contributors from participating in this symposium, the best alternative is to direct interested readers to some of their scholarship:

• Underuse of the Override - Aileen Kavanagh (Trinity College Dublin, Ireland)

• Democracy and Judicial Review: Are They Really Incompatible? - Annabelle Lever (Sciences Po Paris, France)

• Responsive Judicial Review in Canada: Reflections on the Notwithstanding Clause and Beyond - Rosalind Dixon (University of New South Wales, Australia)

In the coming months, the Supreme Court of Canada will continue to grapple with these issues as it decides the Quebec appeal, and hears and decides the Saskatchewan appeal. When the decisions are published, readers can expect to receive an update from me.

The symposium has contributed to ongoing reflections and discussions on these issues. In doing so, many of the contributors have spoken to the legal issues that are before the Supreme Court of Canada. They place them in a domestic and comparative context, as well as a broader theoretical perspective. More generally, the contribution extends beyond the courtroom. Many of the contributors consider the political issues that surround these reflections and discussions. The halls of the Supreme Court of Canada may be one relevant terrain, but they are not the only one.

I thank the contributors for their thoughtful interventions. The symposium would not be possible without the time and effort they put into their posts. This can sometimes be difficult given the hectic schedule and competing commitments that come with academic life. Their willingness to participate contributed greatly to the richness of the symposium. It was a pleasure to collaborate with them and serve as editor to bring this project to fruition.

I hope that readers have found this interesting and thought-provoking. I remain open to comments or suggestions about the symposium and the Monitor more generally going forward. If you want to reach me, you can do so at jesse.hartery@unifr.ch or jesse.hartery@student.unimelb.edu.au.

Suggested citation: Jesse Hartery, “Conclusion to the Notwithstanding Clause Appeals Symposium,” Constitutional Theory Monitor (1 June 2026), online: https://constitutionaltheorymonitor.substack.com/p/conclusion-to-the-notwithstanding

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Jesse Hartery is a PhD candidate at Melbourne Law School, Research Fellow at the Université de Fribourg and former Law Clerk to Justice Nicholas Kasirer at the Supreme Court of Canada.

The hearing raised questions about the relationship between section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’) and other provisions of the Canadian Constitution. It featured some attempts by those seeking the invalidation of the law to overclaim the effect of other constitutional provisions. The risk is that it leads the court to underclaim their effect.

For example, there were arguments that the legislation is incompatible with the ‘constitutional structure’ due to its limitation on freedom of religion or that the equal guarantee of rights and freedoms to male and female persons provided by section 28 of the Canadian Charter can neuter the notwithstanding clause (e.g. 16:40 - 35:05; 1:23:05 - 1:38:30).

In response, the judges reminded critics of the possibility of reasonable disagreement about the meaning and scope of rights. For example, Chief Justice Richard Wagner and Justices Suzanne Côté, Malcolm Rowe and Nicholas Kasirer highlighted Québec’s distinctive history with religion, the fact that democratic countries like France have adopted a similar model of secularism, that the legislation might be seen as having a pressing and substantial objective, and that it might be understood as an extension of the court’s decision in Mouvement laïque québécois v. Saguenay (City).

In this post, I argue that other provisions of the constitution must be understood harmoniously with section 33. The issue with these arguments as presented is that they have the purpose and effect of eviscerating section 33. There is an alternative understanding of the constitutional structure and section 28 that does not lead to this result or overclaim the effect of the notwithstanding clause.

The Place of Judicial Review

There have long been discussions about how constitutions can and should be enforced (Hartery and Sigalet 2024). Judicial review of legislative action for constitutional compliance (hereafter ‘judicial review’) plays an important role in some countries, whereas it is less prominent or non-existent in others. One of the main arguments against giving judges the ‘final word’ rests on the possibility of reasonable disagreement about the interpretation of a constitution. Indeed, the strongest case for judicial review rests on its institutional qualities, not its ability to achieve superior results.

Canada’s constitutional history and tradition is an example of the constitutional enforcement function being formally shared amongst multiple actors. Prior to 1982, the judiciary enforced the structural aspects of the constitution, most notably federalism. While some non-judicial actors shared this function until the 1940s, their ability to exercise it has fallen into disuse and the Supreme Court of Canada has given credence to the view that it has become void through implied amendment (Mathen 2024; Hartery and Sigalet 2026).

The discussions that led to the constitutional changes in 1982 concerned judicial review for constitutional compliance with rights and freedoms. A decision was made to formally introduce judicial review. At the same time, it was agreed that section 33 would ensure the political branches could disagree with the courts or continue to express their understanding of rights and freedoms in relation to the fundamental freedoms (s. 2), legal rights (ss. 7-14) and equality rights (s. 15) in the Canadian Charter. The result is a new inter-institutional relationship in relation to rights and freedoms (Hartery 2023).

In recent years, there have been debates about whether the Supreme Court of Canada can issue declarations of incompatibility that do not involve invalidating legislation when section 33 is invoked. There are good arguments both for and against. It may be the case that the advantages do not outweigh the risks. In any case, embracing the risks may not be necessary to the extent that an advisory opinion offers a form of declaration of incompatibility anchored in Canadian constitutional practice and can develop organically through the political branches.

The Notwithstanding Clause in Shaping and Understanding the Constitution

The court’s decisions in OPSEU (1987) and Alford (2026) focus on the “structure of government” established by the constitution. The court observed that it contemplates the existence of “certain political institutions, including freely elected legislative bodies at the federal and provincial levels.” Accordingly, legislation that “substantially interferes with” or “fundamentally undermine[s]” these institutions may be unconstitutional.

In OPSEU, the court concluded that provincial legislation restraining provincial civil servants and employees from engaging in certain federal political activity to “safeguard their neutrality and impartiality” was permissible. In Alford, it went further at the invitation of the federal government. The court upheld a federal legislative provision stating that no member or former member of the federal National Security and Intelligence Committee of Parliamentarians may claim immunity based on parliamentary privilege for the disclosure of protected information. This does not fundamentally undermine Parliament’s function as “a legislative body in a Westminster-style parliamentary system of government.”

These cases suggest that the bar is high because the inquiry is focused on the institutions and must respect legislative autonomy. Significantly, in Alford, the court explained that “[t]he meaning given to a constitutional provision must also be harmonious with the structure of government implemented by the Constitution, as expressed through both the 1867 and 1982 Constitution Acts” (at para 48). This includes section 33 (Hartery 2023, 715). The result is that an institutional argument may generally only be more serious when it involves tension between two democratically elected orders of government, which engages the federalism dimension of the constitution.

These protections are complemented by the democratic (ss. 3-5), mobility (s. 6) and language (ss. 16-23) rights in the Canadian Charter, which cannot be subject to section 33 (Hartery 2023, 707). Overall, the Attorney General of Alberta put these nuanced points best, explaining that “while s. 33 does leave legislatures with the power to decide the scope and limits of certain rights, that authority is far from unlimited, and would not extend to fundamentally undermine core institutions.”

More broadly, due to section 28, these protections extend to the equal guarantee to male and female persons of rights and freedoms that are not and cannot be subject to section 33 (Hartery 2023). This may be particularly significant with respect to what Jeremy Waldron calls “the right of rights” in a democracy: participation. As I have explained in my writing, it might be said that “having courts apply s. 28 in these circumstances can ensure that the decision to invoke the notwithstanding clause is based on a democratic mandate from a wide cross-section of society and that this same cross-section can hold the government accountable for its continued use of the clause should that be necessary” (719).

The bolder view advanced in the hearing that section 28 protects the equal guarantee of rights and freedoms that have been targeted by an invocation of section 33 strains the text and structure of the constitution.

Section 28 provides that “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” The words “Notwithstanding anything in this Charter” entail that a provision cannot apply directly to section 28 (Hartery 2023, 703-706, 711, 721). In addition, the words “the rights and freedoms referred to in it are guaranteed equally to male and female persons” entail that section 28 is a non-independent guarantee of the equal exercise of other rights and freedoms. This means that section 28 must necessarily be invoked in correlation with other provisions (Hartery 2023, 698).

The opening words of the section do not prevent other provisions, such as section 33, from applying to the underlying rights and freedoms with which section 28 must be tied. The result is that there will be circumstances in which section 28’s role is attenuated or non-existent. This will depend on the provision and the circumstances of the case.

For example, section 32 provides that the Canadian Charter applies to state action. It cannot apply directly to section 28. But it does apply to the underlying rights and freedoms. The effect of section 28 is not to eviscerate section 32. It guarantees the equal exercise of rights and freedoms that are only held against the state. Similarly, section 1 allows for reasonable limitations on rights and freedoms. It cannot apply directly to section 28. But it does apply to the underlying rights and freedoms. The effect of section 28 is not to eviscerate section 1. It guarantees the equal exercise of rights and freedoms as reasonably limited.

The same logic applies to section 33. It prevents the judiciary from invalidating legislation based on certain rights provisions. It cannot apply to section 28. But it does apply to the underlying rights and freedoms. The effect of section 28 is not to eviscerate section 33. It serves to invalidate legislation on the basis that it infringes the equal exercise of rights and freedoms that are not or cannot be subject to section 33.

More generally, the bolder view rests on a historical record that is susceptible to competing interpretations and an incomplete explanation of comparative law.

Section 28 was included in the version of the Canadian Charter that preceded the discussions about the notwithstanding clause. After the compromise that led to the introduction of the notwithstanding clause, there were proposed changes to section 28.

A working draft dated November 5, 1981, would have modified the opening clause of section 28 to read “Notwithstanding anything in this Charter except section 33” and added section 28 as a provision within section 33. This led to concerns that this draft would indirectly allow legislatures to invoke section 33 in relation to provisions that cannot be subject to it, such as sections 3–6 and 16–23.

To attempt to deal with this concern, there was a proposal on November 16, 1981, to modify the language of section 33 as targeting “section 28 of this Charter in its application to discrimination based on sex referred to in section 15.”

Between November 17-19, 1981, some provinces expressed the view that there should be “no limitation on section 28,” that “section 28 … should not be subject to federal or provincial legislative override,” and that “section 28 as contained in the original resolution” should be retained.

This view is also reflected in the debates that took place in the federal Parliament in November 1981. It was argued that the language should be modified to ensure that “the rights and freedoms set forth in all the provisions of the resolution will be guaranteed equally to male and female persons,” that section 28 should be restored to its “full power,” that the rights in the Canadian Charter be “guaranteed equally to male and female persons,” and that section 28 should apply “without the override.”

In the end, section 28 was restored to its original wording and the mention in section 33 of “section 28 of this Charter in its application to discrimination based on sex referred to in section 15” was removed.

These developments clearly confirm that section 28 was not itself meant to be directly subject to other provisions, including section 33. But it tells us little about section 33’s effect in relation to sections 2 and 7-15 of the Canadian Charter. It is true that some provinces expressed a concern that this change would make section 28 a “free standing” equality guarantee or entail that “sexual equality in section 15 could not be overridden.” But this view was not universal, and strains the text and structure of the constitution (Hartery 2023, 706; Newman 2025).

Overall, the better view is that this series of changes had the purpose and effect of ensuring the application of section 28 in relation to rights and freedoms that cannot be and are not subject to section 33.

Finally, the bolder view is right to rely on section 10 of the provincial Charter of Human Rights and Freedoms (the ‘Quebec Charter’) as a comparator. It confirms that section 28 is a guarantee that must necessarily be invoked in correlation with other provisions.

But it draws an incomplete picture. The provision is also useful in understanding the purpose and effect of the words “Notwithstanding anything in this Charter.” Like section 28, section 10 of the Quebec Charter cannot be directly subject to the limitations clause. This flows from the scheme of the Quebec Charter because the limitations clause in section 9.1 was placed in a different chapter. Therefore, words like “Notwithstanding anything in this Charter” were not needed to achieve this result with respect to the limitations clause. Nonetheless, the Supreme Court of Canada has always held without apparent controversy that the limitations clause can and does apply to the underlying rights and freedoms. This means that there is only an equal guarantee of rights and freedoms as reasonably limited or applicable (Hartery 2023, 713).

Not Missing the Forest for the Trees

The possibility of reasonable disagreement can and should serve as a reminder of the importance of humility. For example, there are arguments against a law like the one at issue in this case, which have notably found resonance in some of the court’s jurisprudence, and through the Québec Liberal Party and Québec solidaire during legislative debates. But there are also arguments in favour of legislation of this nature, which have notably found resonance in some of the court’s jurisprudence, and through the Coalition Avenir Québec and the Parti Québécois during legislative debates. More generally, it may be notable that the European Court of Human Rights has upheld laws of this nature in some contexts, which were adopted by democratic and federal countries such as Belgium, France and Switzerland.

Nonetheless, the arguments for and against legislation should not lead the court to eviscerate the role each provision plays in the constitution. The fact that the legislature has the final word in some contexts does not mean that it will and should act. These issues are properly the subject of ongoing political contestation. Similarly, the fact that the judiciary has the final word in some contexts does not mean that it will and should intervene to invalidate legislation. There is room for courts to be responsive to the democratic and federal dimensions of the constitution in undertaking the task of adjudication (Hartery 2023, 717 and 719-720). This is an opportunity for the court to teach these lessons.

Suggested citation: Jesse Hartery, “Section 33 and the Constitutional Structure,” Constitutional Theory Monitor (27 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/section-33-and-the-constitutional

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Erin F Delaney is Leverhulme Professor of Comparative Constitutional Law and Director of the Global Centre for Democratic Constitutionalism at University College London, Professor of Law at Northwestern Pritzker School of Law, and Secretary General of the International Society of Public Law.

As a teenager, when I would bemoan my lot in light of the far superior existences of my friends, my mother would invariably say “comparisons are odious.” Or, in other words, simplistic comparisons can be misleading and, indeed, even harmful to a sense of self or purpose. It is perhaps ironic that I am now a comparative constitutional scholar—but I do try to approach the project with my mother’s warning in mind.

I was therefore struck by the use of comparison in oral argument in EMSB v. Québec. The dramatic and rhetorical flourishes were not put as pointedly in the written submissions; nevertheless, I would like to take the lawyers seriously and assess the claims. The comparator was, of course, the United States, or the neighbour “to the south.”

The United States was used on both sides of the litigation as an appeal to extremes. The worst of all worlds—a reductio ad absurdum in the lived experience of the United States. But in one instance, the slippery slope was hardly illuminating, in that it obscured strengths of the Canadian constitutional compromise while underplaying concerns; in another, it was inapposite, a simplistic analogy that missed the forest for the trees.

“Catastrophic Scenarios”

On the first day of argument, counsel for the Fédération autonome de l’enseignement made a series of arguments pushing for the substantive review of laws insulated by Section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’). As a background principle of interpretation, he argued for an evolutive reading of Section 33: “We can’t analyse Section 33 in the same way that we did in 1988 and I’m strictly talking about Canada obviously, we could talk about everything that’s happened elsewhere in the Western world and even to the south of us.” He continued:

It would be an error to analyse this current issue in a vacuum as if Canada were sheltered from everything that is happening around the wider world – as if Canada were so much better than any other country, as if the United States in 2013/2014/2015 could foresee what’s happening now, as if France, Hungary, Italy – so many other countries had thought that there could one day be this shift. Am I saying that Canada will have its Donald Trump moment? I hope it won’t.

And in conclusion, “Everything happening in the United States could happen here in a perfectly constitutional way” (see generally 1:40:00 - 2:10:10 of Day 1).

I do not disagree that, at bottom, this Section 33 case is about what constitutional democracy means in Canada, and I do not disagree that there are serious threats to constitutional democracy in the United States. But the analogy obscures what is at stake.

The analogy to the United States both misses the strengths of the Canadian Charter and yet may serve to blind the judges to very real threats to democratic constitutionalism. As a stark textual matter, Section 33 does not apply to the voting rights in Section 3, for example, or the mobility rights in Section 6, a key element to federal cohesion. As a matter of interpretation, Section 28’s gender equality provision is thought to be similarly safeguarded—some of the arguments against Bill 21 on gender grounds take this as an expectation. In other words, the negotiated settlement reached in the Canadian Charter could be understood to constitutionalize and preserve a minimum core of democracy against the actions of recalcitrant provincial majorities (or a future national majority).

Indeed, catastrophic scenarios of this kind failed to land with some of the Justices. Chief Justice Richard Wagner responded that the case was unlikely to “be disposed of by extremist or catastrophic scenarios.” And Justice Malcolm Rowe said, “You have less confidence in the good sense and the good will of Canadians than I do. We’re not teetering on the edge of the precipice of fascism. That’s not the reality” (2:21:57 - 2:27:23 of Day 4).

But of course, democratic backsliding happens by small accruals over time. Any individual rights retrenchment may be perceived as an isolated incident, but courts must be willing to monitor and evaluate the bigger picture.

In comparative perspective, courts struggling with challenges to the foundations of democratic constitutionalism have looked to the “basic structure” of their constitutional systems to try to identify the fundamental features of the regime whose alteration, even if procedurally adequate, may nevertheless be substantively unconstitutional. This judicial practice is highly contentious but has been justified when there are practices of significant democratic backsliding threatening “future exercises of democratic decision-making,” which could, depending on the system, include undermining equality norms or free expression.

The Supreme Court of Canada should be attuned to the possibility that this use of Section 33 (and perhaps its increased use more generally) could well portend greater trouble ahead. The Court has already identified a threat to voter participation and an informed electorate in an earlier invocation of Section 33. The Court should think seriously about what an actual minimum core of democracy would require. Although the protection of voting rights is a necessary element, it is not sufficient, and the areas insulated from Section 33 may not reflect a considered statement of what such a core would encompass. The architects of the Canadian Charter may not have been theorizing a “democratic core” that should be protected from override but rather thinking of political trade-offs that would bring provincial premiers to the negotiating table. There is a distinction between that which ensures the federation and that which ensures democratic constitutionalism.

It may be that in a future moment, the Supreme Court of Canada would be justified in treating some rights as so essential to the ongoing maintenance of constitutional democracy in Canada that they operate as the “basic structure” of constitutional governance and therefore cannot be understood to be subject to Section 33 overrides.1 Even should the Court conclude that this particular use of Section 33 does not present such a core challenge—one swallow does not a summer make—it should not unduly constrain or abdicate its role as an ongoing safeguard for the vibrancy and longevity of Canadian democracy.

American Dysfunction

On the second day of argument, counsel for the Mouvement laïque québécois addressed the question of whether the Court should make a declaration of incompatibility regarding the constitutionality of the underlying Québec law, shielded by Section 33. The claim: A judicial declaration of incompatibility with the Canadian Charter would allow it to “become a campaign issue. … This would lead to an Americanization of our Canadian court system. Why is our court system better than that of the United States? In part, because of Section 33 which avoids the politicization of our legal system” (2:16:37 - 2:31:32 of Day 2).

Once again, I do not disagree that the Section 33 case is also about allocation of institutional authority and the relationship between courts and legislatures within Canadian democracy. Nor do I disagree aspects of the U.S. legal system are contentious because they are highly politicized, such as appointments to the Supreme Court and close decisions of that body on divisive issues. But the comparison is confounding.

First, the Canadian judiciary is not unfamiliar with politics, though it has thus far avoided politicization. As to appointments, the question of judicial legitimacy has been raised by Québec since the mid-1980s, as arguments for a greater provincial role have dovetailed with a deep sense that the Supreme Court is biased against the province. And the preliminary reference mechanism is often used by provinces and the federal government alike to force critical issues onto the national agenda—operationalizing the court for decisions that can serve as focal points around which to bargain. While there may be procedural distinctions between the preliminary reference and a declaration of incompatibility—the practical result would be similar: an opinion about a topic that does not present a live case or controversy, but about which the Court provides an assessment. If the former is not thought to create undue politicization, why would the latter?

I assume the response would focus on the fact that Section 33 engages rights, and thus implicates a fear that declarations of incompatibility could generate in the Canadian system the same kind of polarization that Supreme Court cases on same-sex marriage and abortion have done in the United States. But this wildly misunderstands the rights architecture and role of federalism in the United States.

In the United States, when a right has been incorporated as a “national” right, applying to both the federal government and the state governments, its content is understood to be the sole interpretive responsibility of the U.S. Supreme Court. States are not invited to weigh in on the articulation of the national norm, which also operates as a federal floor. Should they wish to deviate and provide greater protection, they are required to do so clearly and explicitly as a matter of distinct state constitutional law. The politicization and tension surrounding rights in the United States is driven at least in some part by pressures for this uniformity in rights articulation—with no release valve at the state level and a very limited scope for Congress to provide alternative interpretations—all parties on all sides seek a winner-takes-all approach at the Supreme Court. The Canadian Charter, through the inclusion of Section 33, proposes something fundamentally different. Through the notwithstanding clause, the Canadian Charter offers an opportunity for subnational demoi—organized through provinces—to participate in the articulation and interpretation of Canadian Charter rights.

There is, however, a useful lesson to be drawn from the United States—though not in the area of rights elaboration but in the area of federalism: How should we ensure that the national demos organized as a federal government, and the multiple subnational demoi, organized as states or provinces, can together produce the double security of liberty that federalism is thought to provide?

In a series of cases over the past 30 years relating to the interpretation of federalism within the United States, the U.S. Supreme Court has made it clear that informed voters are foundational to this aspiration of a double security. Do voters know “who to blame” for the operation of law within their communities? For example, a federal law administered by state actors might obscure responsibility and the ability of voters to ensure accountability at the voting booth.

How does this translate to the Canadian experience? The use of the notwithstanding clause in a preemptive posture by a province provides a statement of how the provincial demos thinks a particular right should be operationalized as a matter of the underlying law; it also provides an assessment by that provincial community of what the national perspective, as provided by the Canadian Supreme Court, might be. This presupposition—that possible provincial interpretation of rights might not comply with the Court’s potential interpretation—may be accurate. It also may not be. How is a voter to know whether a preemptive use of Section 33 presents a dramatic challenge to the national framework or a subtle distinction that may have merit in a regional context?

A declaration of incompatibility in this context is not a “politicization” of the judiciary, but a statement of the national community about a point of possible difference with a provincial demos. Members of that provincial voting population have the right to hear from the national community, through the Court, about where and how their views may differ. Voters seeking to extend the use of Section 33, for example, would need this information to make an informed decision on reauthorization, to know whether the provincial position dovetailed with or was in opposition to the national view.

* * *

Certainly, it is useful to have a foil for rhetorical reasons, and the United States presents as good a one as any right now. And it has played this role historically—from the allocation of competences in the 1867 British North America Act to the recent election of Mark Carney. But, as I began, comparisons with others can obscure important aspects of your own situation. The Supreme Court of Canada should use the comparison to evaluate the strengths and weaknesses of Canadian democracy on its own terms and pay less attention to whether the U.S. gets to stay out later at the party.

Suggested citation: Erin F. Delaney, “Comparisons are Odious,” Constitutional Theory Monitor (25 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/comparisons-are-odious

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Dave Snow is an Associate Professor at the University of Guelph.

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F.L. (Ted) Morton is an Executive Fellow at the School of Public Policy and Professor Emeritus at the University of Calgary.

The Supreme Court of Canada’s hearing concerning Bill 21 and section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’) raised a number of questions that could be addressed. In this post, we consider what the Attorney General of Alberta calls the “range of creative proposals” that have been advanced by the federal government and various parties and interveners – often funded by Ottawa itself – to restrict the use of the notwithstanding clause. These arguments share common features: they function as backdoor amendments to the Constitution, and risk eroding the legitimacy of the courts and the unity of the Canadian state. Indeed, some commentators are predicting that an adverse ruling against Quebec and its provincial allies could “inflame separatism” and lead to a “national unity” crisis.

Some of the judges acknowledged these points during the hearing. For example, Justice Suzanne Côté asked one party whether it was calling for “a constitutional amendment” (1:40:00 - 2:10:10). This is precisely what these proposals entail. More generally, the Chief Justice, and Justices Côté, Rowe and Kasirer seemed to implicitly highlight through their comments and questions that the notwithstanding clause can play a role in accommodating provincial differences (e.g. 1:40:00 - 2:10:10; 2:11:10 - 2:30:46). At a time when the integrity of the Canadian federal system may again be at risk, this is an opportunity to affirm the features of the Constitution that may play a role in alleviating some of the tensions.

The Proposed Restrictions to the Notwithstanding Clause

This political fight began in 1981. Prime Minister Pierre Trudeau’s original draft of the Canadian Charter had no notwithstanding clause. In the Patriation Reference, the Supreme Court of Canada held as follows:

A substantial degree of provincial con­sent—to be determined by the politicians and not the courts—was conventionally required for the amendment of the Canadian Constitution. The convention existed because the federal principle could not be reconciled with a state of affairs where the federal authorities could unilaterally modify provincial legislative powers. The proposed amendments were not severable despite the fact that the Charter of Rights offended the federal principle and the proposed amending formula did not.

Section 33 was added only after provincial premiers made it clear that they would not accept Trudeau’s proposed Canadian Charter without it. The premiers knew from experience that the text of the Constitution does not speak for itself. At the end of the day, the Constitution usually means what judges say it means. Hard bargaining resulted in a compromise. Trudeau got his Canadian Charter. The provinces got the notwithstanding clause.

This clause allows a legislature to exempt one of its laws from any judicial declaration of invalidity arising under the designated sections of the Canadian Charter. Its practical effect is to give elected legislatures rather than judges the last word when there is a disagreement over the practical meaning of a right.

Outside of Quebec, the notwithstanding clause was little used for three decades. Recently, however, there has been a resurgence in the provincial use of the notwithstanding clause. Section 33 has been used in ten different provincial laws since 2018 — not just by Quebec but also by Ontario, Saskatchewan and Alberta.

Faced with this, the federal government and various parties and interveners have now asked the court to impose new restrictions on when and how a government can use the notwithstanding clause. The proposed restrictions are many, including banning pre-emptive invocations, making invocations subject to “unwritten principles,” and the federal government’s novel proposal to prohibit invocations that would lead to an “irreparable impairment” of rights.

Backdoor Amendments to the Constitution

These arguments contradict both the text of section 33 and its clearly documented purpose.

The purpose of the notwithstanding clause was succinctly explained by former Alberta premier Peter Lougheed in 1983: “We needed to have the supremacy of the legislature over the courts. … we did not (want) to be in a position where public policy was being dictated or determined by non-elected people.” Lougheed argued in a 1991 speech that the notwithstanding clause provided Canada with a “system of checks and balances between the judiciary and legislators before judicial supremacy could assert itself.” The examples of both the United Kingdom and Australia demonstrate that it is possible to have constitutional supremacy without judicial supremacy, the rule of law without the rule of lawyers. That was the deal.

Lougheed’s example is particularly important. He supported the clause. Although he proposed some changes to it—such as preventing standard form use, requiring a qualified majority for its invocation and banning pre-emptive use—his remedy was to amend the Constitution itself. Lougheed recognized that the notwithstanding clause is part of the constitutional settlement that gave us the Canadian Charter, and if that clause is to be altered, it must be done through constitutional amendment, not judicial revision.

If the Supreme Court of Canada accepts the “creative proposals” made by the federal government and several parties and interveners, it will have effectively amended the notwithstanding clause to mean something very different than what Quebec, all the Western premiers and even the Trudeau government understood it to mean in 1982. For the court to impose any new restrictions on the use of the clause would be precisely the judicial overreach that section 33 was designed to prevent.

Judicial Legitimacy and the Integrity of the Canadian Federal System

Although courts remain broadly popular and legitimate in the eyes of Canadians, some recent public opinion data has shown declining confidence in the courts, with the lowest levels from supporters of the Conservatives and the Bloc Québécois. This is unsurprising due to the types of Canadian Charter decisions we have seen coming out of courts.

In recent years, courts have issued injunctions or struck down laws preventing governments from banning drug consumption in public; restricting cross-sex hormones and gender transition surgeries for minors; permitting parental consent for pronoun changes at school; preventing municipalities from making residents mow their lawn; and closing down drug consumption sites, homeless encampments, and even bike lanes. Reasonable people may agree or disagree with these policy outcomes. But the cumulative effect has been a growing public sentiment that federally-appointed courts are simply selecting their preferred policy results in areas of provincial jurisdiction.

Provinces have shown that they will push back against perceived judicial centralization, and the notwithstanding clause is the most obvious instrument they can use. This is especially true for Quebec, where most invocations of the notwithstanding clause have occurred. Ironically, one way in which Canada has arguably been able to move beyond Quebec’s perceived betrayal from patriation in the 1980s has been via the notwithstanding clause—a provision that emerged from patriation itself. We share the view of scholars who have argued that the clause has become one of the primary means by which Quebec’s National Assembly has been able to assert its autonomy—to remain, in the words of Premier Robert Bourassa, “aujourd’hui et pour toujours, une société distincte, libre et capable d’assumer son destin et son développement.”

Both within and outside of Quebec, national unity promises to once again rear its head. In such times, the ability of provinces to legislate within their own jurisdictional domains may be crucial to avoiding cracks in the federation. And as it has sometimes done before, the Supreme Court of Canada has an important role to play to prevent what some predict could be a “national unity crisis.”

Responding to the Patriation Reference, the late great Peter Russell wrote that the court engaged in “Bold statecraft, questionable jurisprudence.” With respect to the notwithstanding clause, the path is far simpler: engage in bold statecraft by rejecting the questionable jurisprudence advocated by today’s opponents of the notwithstanding clause who seek to rewrite the Canadian constitutional bargain by judicial fiat.

Suggested citation: Dave Snow and F.L. Morton, “Backdoor Constitutional Amendments to the Notwithstanding Clause and the Risk to the Integrity of the Federation,” Constitutional Theory Monitor (20 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/backdoor-constitutional-amendments

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Dwight Newman, KC, FRSC is Professor of Law and Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law at the University of Saskatchewan.

The four days of the Supreme Court of Canada hearing in the EMSB v. Québec case concerning Bill 21 saw surprisingly limited reference to the purposes of section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’) and some surprising attempts to make it subservient to other sections of the Canadian Charter.

Notably, there were various arguments that seemed to suggest subjecting uses to part or all of the section 1 limitations clause, from which the proportionality test expounded in R. v. Oakes and developed over the years has been derived. It is not simple to understand what precisely some of these arguments suggested because the section 1 test itself has been the subject of scholarly and jurisprudential discussions and changes.

The Attorney General of Alberta, in oral submissions made by the Deputy Minister of Justice himself, did one of the best jobs in articulating a purpose for the notwithstanding clause. As put by Malcolm Lavoie KC,

Section 33 was the pillar of the constitutional settlement of 1982 because it deals with the most fundamental question in any constitutional system, and that question is, who decides? Section 33 is fundamentally about who decides the scope and limits of the rights enumerated within it. (just after 1:03:07 of Day 3)

But such moments of clarity were rare. And we also had moments of counsel arguing for a judicial testing of parliaments’ and legislatures’ purposes in using section 33, calling for something much like the first branch of the Oakes test. On this issue, Justice Malcolm Rowe had an informal rejoinder that is very much on point. He explained that “if you impose the Oakes analysis on the exercise of 33, 33 goes poof,” in that it disappears, which means “all you have left is section 1” (just around 2:23:00 of Day 1).

In this short post, I want to highlight the three key purposes of section 33 that I have referenced in my past writing and how renewed attention to them bears on the hearing and the issues that arose.

I have referenced these three key purposes most recently and thoroughly in my chapter in the collection on section 33 edited by Peter Biro. There, I identify these purposes as making space for a legislative role in the interpretation of rights, permitting diversity in understandings of balances between different rights across the different units within Canadian federalism, and making it possible to respond to urgent circumstances with a use of section 33.

First, the most central of these purposes has been adopted by the Supreme Court of Canada in its City of Toronto decision in 2021, where the majority spoke to the role of section 33 in the course of explaining why unwritten constitutional principles cannot be used to strike down legislation (at para 60):

[…] s. 33 preserves a limited right of legislative override. Where, therefore, a court invalidates legislation using s. 2(b) of the Charter, the legislature may give continued effect to its understanding of what the Constitution requires by invoking s. 33 and by meeting its stated conditions (D. Newman, “Canada’s Notwithstanding Clause, Dialogue, and Constitutional Identities”, in G. Sigalet, G. Webber and R. Dixon, eds., Constitutional Dialogue: Rights, Democracy, Institutions (2019), 209, at p. 232).

In other words, section 33 permits legislatures to articulate and enforce their conception of rights and their implications, preserving a balance with aspects of the Westminster system of government in the face of calls by some to fully embrace American-style strong-form review.

The majority said this in 2021. It is not clear why anyone would suppose that the purpose of section 33 changed between 2021 and 2026. If the Court is to operate as a court of law rather than a sandbar of shifting political tides, there is strong reason for it to stand by its decision of just five years ago.

And if we say that section 33 permits legislative interpretation of the scope of rights, then it follows that there cannot be a section 1-style analysis of uses of section 33. To do so would be to subject a legislative decision once again to judicial scrutiny in a manner that denies the very legislative role at issue.

Second, implicit within the idea of provincial legislatures being able to use section 33 is an idea of permitted diversity within the federation. The Canadian Charter can bring Canadians together without being a homogenizing monster. Different provinces will take different stances on how to approach some rights questions based on different histories, different traditions, and different societal contexts. And that is a good thing within a place as large and diverse as Canada. The submissions for Droits collectifs Québec referencing the distinctive Québec experience with the notwithstanding clause must be understood as one exemplar of a differing use of the clause within the federation. Provinces made clear the importance of the notwithstanding clause even in who they sent to the hearings. As mentioned, Alberta sent not just a lawyer but its Deputy Attorney General. Ontario sent its Attorney General himself. Subjecting uses of section 33 to one homogenized section 1 analysis would take away from the federal nature of the clause.

Third, section 33 also functions to allow governments to respond to urgent circumstances. Ironically, some of those who sometimes speak of wanting to restrict section 33 to only those circumstances of ‘emergency’ and ‘last resort’ are the very first to call for imposing additional tests on section 33 and imposing forms of judicial scrutiny to uses of the clause that can perpetuate legal uncertainties through the courts for years upon years. Recognizing that the clause serves as a way for the federal Parliament or provincial legislatures to interpret rights differently, including in interpreting how to respond quickly to an issue, makes clear that it cannot be subjected to different layers of legal tests and judicial inquisition.

Consider Saskatchewan’s announcement of a readiness to use the clause in 2017 right after an April 2017 court decision that might otherwise have led children and parents to make longer-term decisions on where they would go to school based on the risk that the trial court decision would stand and force them to move partway through high school. The readiness to use the notwithstanding clause (later made unnecessary by an appellate decision) functioned to restore clarity when courts disrupted it. It is also exactly the sort of decision that those wanting to put additional restrictions and tests on section 33 would render unviable.

There is much at stake here, including the matter of whether a key structural clause that enabled the very adoption of the Canadian Charter is to disappear. If it does, there may be related consequences for trust in the courts and for national unity itself. For the Court, there is good reason to try to preserve the constitution, courts, and country.

Suggested citation: Dwight Newman, “Preventing Constitutional Clauses from Disappearing: Keeping Proper Understandings of Section 33,” Constitutional Theory Monitor (18 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/preventing-constitutional-clauses

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Richard Bellamy is Professor of Political Science at University College, London (UCL), a Fellow of the British Academy (FBA) and a Member of the Academia Europaea (MAE).

A number of the appellants and interveners have either raised themselves or, in comments by one of the judges, been asked about, the possibility for the triggering of Section 33 of the Canadian Charter of Rights and Freedoms to be subject to something akin to Article 4(2) of the 1998 UK Human Rights Act (HRA) – e.g. see day 3 of the hearing. This provision allows a court to make a ‘declaration of incompatibility’ in the case of legislation it considers as infringing the rights of the European Convention on Human Rights (ECHR) that the HRA incorporates into domestic UK law:

‘if it is satisfied—

(a) that the provision is incompatible with a Convention right, and

(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility’ (HRA Article 4 Section 4).

In this brief post, I shall argue that this Article operates in a very different constitutional context to Section 33, which raises questions about the appropriateness of adopting a similar approach in Canada.

Although both the UK and Canada have been assimilated to a ‘commonwealth’ model of constitutionalism, the former takes a more decidedly political constitutional form and the latter a more legal constitutional one (see Bellamy 2020). As the Deputy Attorney General of Alberta noted, and Justice Malcolm Rowe appeared to agree (1:03:07 - 1:18:12), these differences are then reflected in the different provisions and procedures surrounding the HRA and the Canadian Charter, including the respective roles of the UK and Canadian Supreme Courts.

The UK’s political constitution locates the constitution in the character and design of the political system and the modus operandi of its component political processes. The standard constitutional goals of upholding individual rights, the rule of law, and the constraint of arbitrary rule by the executive are met through the operation of the electoral system in authorising and holding accountable representatives in the legislature, who – in their turn – appoint and control the executive. The sovereignty of an elected Parliament offers a constitutional alternative to both the unfettered populist will of the people and the personal rule of the executive. It subjects both the process of legislation and the exercise of executive authority to a due parliamentary process.

Courts play a vital but subordinate part in this arrangement, as the impartial and independent adjudicators of the application of legislation. Given much legislation has implications for the obligations and powers of both legislators and the executive, courts have a role in ensuring both operate in the manner they are authorised to do. To this extent, one can regard the whole body of legislation and the rights and duties it confers as forming a detailed, if uncodified, legal constitution, albeit one that has the status of ordinary rather than higher law. Moreover, Parliament may disapply such legislation by changing it. Therefore, courts can only ever exercise ‘weak review’.

In drafting the Human Rights Act, considerable attention was paid to rendering it compatible with parliamentary sovereignty and the UK’s political constitution (see Bellamy 2011). It secures Parliament’s place as the source of rights, not simply because the Act is itself an ordinary Parliamentary statute but also because it hands to Parliament the prime role of indicating the scope of rights within every piece of legislation. In particular, Article 19(1) requires that:

A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—

(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or

(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

19 (1a) is not a mere matter of form. Rather, Parliament has established an enhanced substantive process of rights-based scrutiny at the pre-legislative stage, involving departmental lawyers, policy leads, Parliamentary Counsel, civil servants, government legal advisers (including the Attorney General), the specially created Lords and Commons Joint Committee on Human Rights, and government Ministers. In part, such scrutiny can be regarded as second guessing potential legal challenges. As such, it has led some commentators to remark that in effect this means that legislation now takes place under the shadow of the courts. However, others contend that it also offers Parliament the opportunity to influence the courts in their turn.

Article 19 (1b) has been read as the UK equivalent of the Canadian ‘notwithstanding clause’. However, it is subtly different. It is not a declaration of incompatibility – indeed, on the very rare occasions it has been used (4 times in 25 years) Parliament has not admitted to any curtailment of rights. Rather, it is a declaration that Parliament is ‘nevertheless’ willing to go ahead with the measure even in the face of a potential adverse judicial challenge. For a variety of reasons, as yet no judicial challenge in circumstances of this kind has been made, although see the discussion of the Communications Act 2003 below.

Arguably, the possibility afforded by Article 19 (1b) explains why Parliament has so far amended legislation that the court has declared ‘incompatible’ under Article 4(2), even though – again, so as to align such declarations with Parliamentary sovereignty – Article 4(6) holds that such a declaration ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and … is not binding on the parties to the proceedings in which it is made’. While such a declaration triggers the opportunity under Article 10 for a Minister to initiate a fast-track legislative procedure to remedy the incompatibility, there is no obligation for the government to undertake remedial action and, though it generally does so, there is usually a considerable delay. Such declarations are also relatively rare, averaging less than 2 a year.

By contrast, the Canadian Charter forms part of the new constitutional settlement put in place in 1982 and that embeds Canada’s political constitution within a codified legal constitution that serves as the ‘supreme law of Canada’ with the Supreme Court empowered as its guardian, able to disapply laws it deems inconsistent with the Constitution. To this extent, the Canadian system allows the courts to exercise ‘strong review’. Consequently, whereas the Human Rights Act can be seen as a mechanism for informing the consideration of human rights within the deliberative Parliamentary processes of the political constitution, the Canadian Charter operates as a judicially interpreted constitutional constraint or framework on the federal and provincial governments and legislatures. Section 33 offers the possibility of temporarily lifting that constraint as a safeguard against its being over limiting – a concern that has been raised with regard to legal constitutionalism’s undermining of democracy more generally. Although Section 33 has been seen as a mechanism that shifts Canada into a system of ‘weak review’, it does not weaken ‘strong review’ by the Canadian court so much as temporarily suspend its exercise. It provides a legal constitutional basis for a limited and temporary element of political constitutionalism.

Article 4(2) of the HRA operates in almost the opposite way – one that provides a political constitutional basis for a limited form of legal constitutionalism (Bellamy 2026 ch. 4). However, it remains subject to Parliament’s role as the sovereign interpreter of rights as per Article 19 (1b). The exemplary case in this regard is generally held to be the Communications Act 2003, which contained a ban on paid political advertising across all broadcast media in sections 319(2) and 321(2). Parliament’s decision to deploy a ‘nevertheless’ statement arose from the European Court of Human Rights (ECtHR) having deemed that a blanket ban conflicted with Article 10 of the ECHR guaranteeing freedom of expression. By contrast, Parliament considered it as being compatible through being ‘necessary in a democratic society’. Arguably their reasoning ultimately influenced the courts, for when a legal challenge to the Act was brought by Animal Defenders International the domestic and European courts accepted that the legislation had given due consideration to the rights involved and that there was no contravention of Article 10. Indeed, the ECtHR has now recognised extensive pre-legislative rights-based scrutiny by the legislature offers grounds for granting national legislatures a broad ‘margin of appreciation’ (Bellamy 2014).

Use of Article 4 simply reflects the role the courts have with regard to all legislation as its impartial and independent interpreters in individual cases. Almost all Article 4 declarations of incompatibility relate to Acts that Parliament has regarded as compliant. That explains why Parliament should prima facie be open to taking remedial action, even though it is not beholden to do so. Yet, it does so on its own terms. Within the UK constitutional order, a ‘declaration of incompatibility’ by a court can only ever be an expression of ‘weak review’ – in most cases drawing to the attention of Parliament that it may have overlooked an issue of law or a claimant’s chance of a fair trial. Belmarsh Prison is typically viewed as the exemplary case in respect of Article 4. In this case, Parliament could hardly be viewed as supinely accepting the court’s decision. True, it granted the court’s judgment that the current detention scheme involved unreasonable discrimination against non-U.K. citizens. However, it took several months to respond, adopting the new control-order scheme following one of the longest Parliamentary debates ever. Meanwhile, the prisoners were only released once the new legislation was enacted so that they could be immediately rearrested. Therefore, Parliament can hardly be viewed as conceding judicial supremacy. Rather, it accepted the courts role as the body charged with applying duly made Parliamentary legislation and then debated how it wished to render its policies in this area sufficiently coherent for courts to be able to rule in a manner consistent with them. Nevertheless, this was a resolution that was Parliament’s to make.

Within the UK there have been debates since the eighteenth century on whether it should acquire a legal constitution. Though some have seen the HRA as a move in that direction, they have been wrong to do so. Such views have served only to delegitimise the Act by suggesting it is at variance with the UK’s political constitution rather than its expression. The danger of introducing something like Article 4 HRA in Canada is rather similar. It would risk delegitimising the strong form review the Court is entitled to exercise under the Constitution in cases where Section 33 has not been invoked by allowing – or even requiring – it to review cases where it has been. Yet, that would offer a masquerade of ‘weak review’, given the norm is that it exercises such powers as a form of ‘strong review’. It would subvert the whole point of the notwithstanding clause, which is to provide a legal constitutional basis for suspending the exercise of any such review. For the court to issue something like a declaration of incompatibility in such cases – even one that the legislature could formally ignore – would risk undermining adherence to Canada’s legal constitution in much the same way as claims that the HRA represents a Trojan horse of legal constitutionalism has unsettled adherence to the UK’s political constitution.

Suggested citation: Richard Bellamy, “Declarations of Incompatibility in Canada and the UK: Are They Really the Same?,” Constitutional Theory Monitor (11 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/declarations-of-incompatibility-in

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Dave Guénette is an Assistant Professor at the Université de Sherbrooke and Co-Director of the Observatoire de recherche sur les enjeux constitutionnels du Québec au sein de la fédération canadienne.

On April 17, 2026, on the 44^th anniversary of the 1982 constitutional patriation, federal Justice Minister Sean Fraser raised the possibility of regulating the use of section 33 of the Canadian Charter of Rights and Freedoms (the “notwithstanding clause”). As quoted by the Canadian Broadcasting Corporation (CBC), he stated: “I do have significant concerns, both of a legal and public policy nature, about the repeated invocation of the notwithstanding clause, which is being used by governments to adopt laws that, in my view, do violate or could violate the rights of Canadians.” He continued: “We’re going to do what we can to protect the Constitution and protect the ability of Canadians to live freely in this country with the full protection that the Charter is intended to provide.”

In response to the controversy sparked by these remarks, especially in Quebec—where the Premier quickly responded “No! That’s out of the question!”—, the federal government clarified that it has no intention of limiting the provinces’ ability to use the notwithstanding clause. In any case, formally changing the conditions for using the notwithstanding clause would require a constitutional amendment through the 7/50 formula (requiring the support of both houses of the federal Parliament and at least seven provinces representing at least 50% of the population of all provinces).

However, without resorting to constitutional measures, there is nothing to prevent the federal Parliament and provincial legislatures from imposing stricter conditions on themselves if and when they wish to enact legislation invoking the notwithstanding clause. As of now, the only real legal requirement is that the use of the notwithstanding clause must be clear and leave no ambiguity as to the intent to derogate from certain rights, as well as the identification of those rights. These conditions were established in the Ford case (1988) and confirmed by the Quebec Court of Appeal in the Bill 21 case (2024). But beyond the legal issues, the hearing in relation to Bill 21 in the Supreme Court of Canada raised the question of whether and to what extent there are political limits on the use of the notwithstanding clause. In this post, I highlight that the development of political limits is possible and is manifesting at both the federal and provincial levels. Nonetheless, provinces remain free to adopt the approach that best suits them in this matter.

Proposals to Unilaterally Regulate the Use of the Notwithstanding Clause

Two parties within the federation are currently exploring the possibility of imposing more restrictive—and unilateral—conditions on their own use of the notwithstanding clause. At the federal level, a bill is under consideration in the Senate to add several requirements if the Canadian Parliament were to invoke the notwithstanding clause: Bill S-218 – An Act to amend the Constitution Act, 1982 (notwithstanding clause). Among these requirements, there would be the obligation that the bill be introduced in the House of Commons by a minister, the necessity for the Supreme Court of Canada to have previously ruled on the potential infringement of rights, the requirement for the preamble to state the reasons why it is deemed necessary to use the clause, and the need for a two-thirds majority of the members of the House of Commons to approve the bill before it is adopted.

Meanwhile, in Manitoba, Bill 4 – The Constitutional Questions Amendment Act proposes that, whenever a provincial statute invokes the notwithstanding clause, a reference must be made to the province’s Court of Appeal to determine whether the statute in question infringes upon the rights referred to in the notwithstanding clause and whether such infringement can be justified under section 1 of the Canadian Charter. These are two concrete examples of ways to impose political limits on the use of the notwithstanding clause.

In Quebec, there is no bill proposing to impose such conditions on the use of the notwithstanding clause. However, last February, as part of the consideration of Bill 9 – An Act respecting the reinforcement of laicity in Québec (now adopted), the Quebec Bar Association tabled a report proposing that the province adopt a framework law on the use of the notwithstanding clause. Among other things, the Bar Association suggests that this legislation could, for example, require the province to explain the reasons for invoking the notwithstanding clause, require a qualified majority when the National Assembly passes the legislation, require a reference to the Quebec Court of Appeal, and so on. So far, there is no indication that Quebec might move forward with such recommendations.

This proposal follows a similar line of thinking to the bills currently under consideration in the Senate of Canada and in Manitoba, in that it does not propose amending the Canadian Constitution to make it more difficult to invoke the notwithstanding clause uniformly across the country; rather, it concerns unilateral actions (actual or potential) by actors within the Canadian federal system to impose stricter conditions on themselves if and when they decide to invoke the clause. Such unilateral actions appear to be increasingly common in the Canadian federal system.

Quebec and the Notwithstanding Clause

It should be noted that the 1982 constitutional patriation remains a controversial event in Quebec, as the provincial government and its National Assembly opposed the adoption of the Constitution Act, 1982. Following the adoption of the Act (and the Canadian Charter of Rights and Freedoms contained therein), Quebec invoked the Canadian Charter’s notwithstanding clause in all its laws and with respect to all the rights covered by the clause. This was a way of demonstrating the province’s objection to the patriation being imposed without its consent.

Therefore, it is understandable that members of the Quebec National Assembly would be reluctant to impose stricter limits on their use of the Canadian Charter’s notwithstanding clause. Indeed, why would Quebec agree to limit its ability and autonomy to deviate from constitutional provisions adopted despite its opposition?

A middle ground solution could then be as follows: Quebec could amend its own Charter of Human Rights and Freedoms (the “Quebec Charter”) to include conditions for invoking the notwithstanding clause found within it, without those same conditions applying to the notwithstanding clause of the Canadian Charter. In other words, political limits that Quebec might impose on its use of the notwithstanding clause would apply only to the Quebec Charter.

Quebec’s autonomy vis-à-vis the Canadian Charter would therefore remain exactly the same: it could derogate from it in exactly the same way it has done on several occasions since 1982. However, to derogate simultaneously from both the Canadian Charter and the Quebec Charter, it would then be necessary to comply with the conditions that would have been added to the Quebec Charter, with regards to the rights and freedoms protected under this Charter. This would reaffirm the protection and value of rights and freedoms in Quebec and enhance the status of the Quebec Charter in the province.

Suggested citation: Dave Guénette, “The Political Limits to Section 33, Quebec and Constitutional Unilateralism,” Constitutional Theory Monitor (6 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/the-political-limits-to-section-33

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Andrea Lawlor is an Associate Professor at McMaster University.

In 2021, Ontario Premier Doug Ford invoked section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’) to amend Ontario’s Elections Finance Act. While an extension to the pre-writ campaign spending period from six months to 12 months was of little interest to most of the public, the application of the notwithstanding clause put the issue front and centre.

The issue highlights a critical – if less understood – aspect of the use of section 33: public attitudes toward it. Indeed, public opinion research on the application of the clause is scant, in part because section 33’s use was historically infrequent (outside of Quebec), but also because of an assumption that few Canadians understand the clause, and amongst those who do, few like it.

But public attitudes toward the clause are also thought to be a potent constraint on governments who seek to apply it “too readily.” Disaffected publics have the choice to sanction governments, where no such opportunity exists to punish courts that may have “got it wrong” according to public opinion.

This tension is at the core of how we understand public attitudes toward section 33 – a set of nested problems, starting with how Canadians view the balance of power between elected politicians and unelected judges on rights-related matters, how they view section 33 generally, to opinions toward an invocation of the clause in an of-the-moment political question. All three questions need to be understood – both as a product of longstanding attitudes and contemporary policy choices – before claims are made about what Canadians think of this unique constitutional tool.

Starting with Canadians’ views of the relationship between the judiciary and the legislature around rights-related issues gives us some insight. The Canada Election Study (CES) has asked Canadians in each election cycle from 1997 onward whether the courts or the government should have the final say if a law conflicts with the Charter. Canadians are clear in their belief that the courts should. Starting in 1997, approximately 70% of Canadians supported the courts having the final say on rights matters – a number that steadily increases to 85% by 2023 (see Figure 1; “don’t knows” excluded). Coupled with overall trust levels in the courts,1 which range from 59% to 79% over the same time frame, the signal is clear, Canadians trust their judiciary.

Figure 1. Views toward the Legislative-Judicial Relationship

Trust, maybe – but not without limitations. Canadians are equally unafraid to “curb” the courts’ authority in certain contexts. “Court curbing” is the term used to describe legislative acts that attempt to limit the court’s authority or to interfere with their ability to carry out their constitutionally assigned role.

In 2023, Erin Crandall and I suggested that the use of the notwithstanding clause may be seen as an institutionalized mechanism of court curbing. The clause, we argued, creates a way for governments to effectively limit the Supreme Court’s authority to have the final say on certain rights related matters while operating well within the constitutional order. This is not necessarily a normative critique of the clause; rather, it points to the ways in which the Canadian constitutional order is uniquely positioned to accommodate this sort of legislative-judicial disagreement on certain rights in certain contexts.

But we cannot decontextualize the public’s view on the use of the clause from their broader attitudes toward what, if any limits, should exist around judicial authority vis-à-vis the legislature. In a survey conducted in 2023, we asked a nationally-representative sample of Canadians their views toward the use of the notwithstanding clause, alongside other hypothetical measures of court curbing.

The results pointed to an interesting split in the way Canadians see the dynamics between the courts and legislatures. When asked about their broad support for the use of the notwithstanding clause, only 28% expressly supported its use, while 49% were opposed (23% were uncertain). These numbers were very similar to other forms of legislative court curbing. For example, on the subject of whether the government should follow the Supreme Court’s ruling on mandatory minimums, only 24% of respondents suggested that the legislature should go against the Court’s ruling (57% expressly said they should comply, 19% were unsure). In other words, for most Canadians, governments should follow courts on legislative matters.

Even so, Canadians are more amenable to the idea of legislatures placing other restrictions on judges that are not reflective of the general principles of judicial independence (see Figure 2). When asked about controlling judges’ salaries, nearly half (48%) suggested that the legislature should be in charge rather than the independent commission that currently decides on judicial pay (28% disagreed, 24% were uncertain). Similarly, when asked about whether the legislature should limit the tenure of judges to 10 years, a full 55% agreed (21% disagreed, 24% were uncertain). Finally, and perhaps most strikingly, when asked whether the powers of the Supreme Court to decide certain types of controversial issues should be reduced if the Court started making a lot of rulings that most Canadians disagreed with, 48% of respondents agreed (23% disagreed, 29% were uncertain).

Figure 2. Agreement with Court Curbing Measures by Party Support2

Which brings us to context. In asking about the use of section 33 by the Ford government on the issue of third party spending, we see a similar outcome. While 27% of respondents supported the government’s use of the clause, 47% did not (26% were uncertain). We see similar results in the Confederation of Tomorrow Survey of Canadians as it relates to Bill 21. But who you ask matters: in the Ontario case, support goes up to nearly 40% amongst Conservative partisans (41% are still not in favour, but only 20% are uncertain). Similarly, Charles Breton highlights the division that exists in the Quebec population over the use of the clause (a province that has traditionally supported its use). This reflects the partisan and regional dimensions to court support and for the application of section 33.

How then might the Court’s current deliberation over Bill 21, particularly the federal government’s questions about limits around the clause’s use, be received by the public? When asking respondents across the country whether they would agree with a Supreme Court decision that ruled Bill 21 unconstitutional, we found that 60% did (25% disagreed, 15% were uncertain). Only 17% of respondents disagreed with the Court’s hypothetical decision and believed that a government should overturn the result. In other words, while there are some who would theoretically support the use of section 33 in this case, they are not a majority.

If we can find a throughline in public opinion toward the notwithstanding clause, it may reveal an antipathy toward government’s who use the clause when it is out of line with public opinion. Canadians don’t want the clause applied without due care, but that there are times where an apparent principled use of the clause may be consistent with the public’s view of where policy should be headed. But courts are also not immune to public backlash and have little way to stave off criticism. There may be little additional value in a judicial decision that overarticulates constraints on section 33’s use. Perhaps, at this stage, the public’s voice may say enough – or, to paraphrase Justice Malcolm Rowe’s observation in the recent appeal to the Court, there may be good reason to rely on the “good sense and good will of Canadians” to play their part in democracy.

Suggested citation: Andrea Lawlor, “The Public’s View of Section 33,” Constitutional Theory Monitor (4 May 2026), online: https://constitutionaltheorymonitor.substack.com/p/the-publics-view-of-section-33

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Geoffrey Sigalet is an Assistant Professor at the University of British Columbia (Okanagan) and the Director of the UBC Research Group for Constitutional Law.

One of the most important questions raised in the Supreme Court of Canada’s EMSB v. Quebec hearing concerning Bill 21 and section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’) was this:

What is the problem with Canadian courts making declarations of incompatibility about laws that invoke the notwithstanding clause without striking them down?

At one point, Justice Nicholas Kasirer asked Quebec’s lawyers about the academic debate on the legal effect of section 33 and pressed for answers about the problem with declarations. He was clearly intrigued about whether laws invoking section 33 “suspended” Canadian Charter rights and if the notwithstanding clause really amounted to an “ouster clause.” Quebec’s lawyers pointed to the precedent set by Ford v. Quebec as blocking declarations and stressed the dangerously political nature of directly questioning the policy choices of the legislature notwithstanding their constitutionally secure status. Neither this defence of section 33, nor the attempts by other interveners to justify declarations, proved quite satisfactory.

In this short post, I will review the legal reason section 33(2) prohibits declarations and then unpack the proper answer to Justice Kasirer’s question: making declarations about laws invoking section 33 would jeopardize the legitimacy that the court relies on to ensure that its holdings are respected and implemented. I will also note a second concern that was only touched on cursorily in the hearing: a declarations power will expand the Supreme Court’s workload and increase the burden of policing trial courts.

The answer to Justice Kasirer’s question about whether section 33 is an “ouster clause” is that it is not expressly worded to prohibit all judicial review because doing so may have prevented the procedural judicial review of the manner and form of laws invoking section 33. The drafters likely did not use blunt ouster clause language because they thought it reasonable for courts to ensure that laws invoking section 33 followed the procedural requirements of the provision. Interpreting section 33 as allowing procedural but not substantive judicial review is consistent with Ford v. Quebec and this has been the clear constitutional practice accepted by Canadian courts and legislatures ever since.

It was advocates of the previously unheard-of practice of courts making judicial declarations about the Canadian Charter consistency of laws invoking section 33 who first grounded their argument on a narrow textualist reading of one term in section 33(2). As I have argued elsewhere, the answer to Justice Kasirer’s understandable puzzlement about how rights can be “suspended” but continue to “exist” is that section 33(2) does not technically suspend or override rights, but instead requires laws to operate as though the relevant Canadian Charter provisions do not apply to them. That is, section 33(2) prohibits substantive judicial review. Section 33(2) states:

An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Section 33(2) instructs the courts to treat laws invoking section 33 as operating as they would have but for the relevant Canadian Charter provisions. This means that the laws operate as though the relevant Canadian Charter sections do not apply to them, even though of course the provision continue to exist and it remains open to the people themselves to question the consistency of the laws with the Canadian Charter.

Courts may not review laws invoking section 33 as they impact the substance of selected Canadian Charter provisions because that fails to treat the laws as they would operate but for such Canadian Charter provisions.

The rival reading offered by Prof. Grégoire Webber, which is undeniably creative, is that section 33(2) protects only the operation of unconstitutional laws. This view is not merely academic as it undergirds many of the arguments made by the parties and interveners seeking new limits on section 33. Webber’s reading fails to fit the text of section 33(2), but also jars with section 1 and the section 52 supremacy clause.

Webber fails to account for section 33(2) guaranteeing that a law operates “as it would but for the [Charter] provision” and reads the clause as though it stated instead that laws “only operate” in the face of inconsistencies with the provisions. But words along the lines of “shall only operate” or “shall operate but for” are not there, nor is there anything about permitting inconsistencies with the Constitution.

Section 1 guarantees all rights subject only to “reasonable limits”, whereas Webber’s view would allow unreasonable limits that operate as unconstitutional exceptions to section 52’s requirement that all laws inconsistent with the Constitution are “of no force or effect.” If there were an exception to section 52, it would probably be explicitly written into section 52. Webber’s reading is ingeniously inventive but semantically sterile. As the Deputy Attorney General of Alberta Malcolm Lavoie aptly noted, the very idea of an operable but unconstitutional law is repugnant to our constitutional concept of repugnancy (1:03:07 - 1:18:12).

Now we can unpack the political reasons for avoiding judicial declarations about the Canadian Charter consistency of laws that properly invoke section 33.

Let us imagine that the trial and appellate courts in Quebec had made declarations that Quebec’s secularism law violated the Canadian Charter’s section 2(a) freedom of religion of the public servants it applied to. Let us say that both courts followed Webber’s reading of section 33(2) and declared that the laws unconstitutionally violate religious freedom but operate notwithstanding.

There has already been significant controversy and criticism of the courts over the question of whether judicial declarations are even possible. In one scenario, it is possible that such declarations pour more nationalist fuel onto the fire and further distract from the rights issue at hand by turning the debate to focus on the legitimacy of the declarations, the federal appointment of section 96 courts, etc. Declarations could become a gift to provincial politicians seeking to delegitimize judges as Ottawa’s pawns.

Let us further imagine that these declarations took place in the wake of a hypothetical previous Supreme Court of Canada decision on a different rights issue, where the court upheld Webber’s view that courts can declare laws invoking section 33 to operate notwithstanding their unconstitutional violation of rights.

In that scenario, it is possible that Quebec could follow its own example in the 1998 Reference re Secession of Quebec and refuse to participate in the proceedings. Perhaps the lower courts could appoint representation for Quebec as in 1998? In that case, the declarations would be made as a result of litigation where only one side of the debate truly presented its arguments. The declarations could then be used by proponents of Bill 21 to showcase the willingness of their opponents to use unfair procedures that undermine the key part of the Canadian Charter meant to help protect provincial autonomy. If provinces refuse to participate in litigation seeking declarations of incompatibility against laws invoking section 33, the declarations could damage rather than inform free and fair deliberation on the rights issue in question.

Or imagine that a majority of the Supreme Court of Canada disagreed with the declarations made by the lower courts and finds no Canadian Charter violation in the case of Quebec’s Bill 21. What happens if the advocates of declarations get their wish and Quebec’s National Assembly repeals the law as the declarations swing popular opinion in Quebec against the secularism law? In that case, it could be too late for the Supreme Court to stop the lower court declarations from misinforming and warping public debate about a crucial rights issue.

What happens if trial courts, appellate courts, and the Supreme Court of Canada all make sweeping declarations and the political process ignores them? Would that not damage the institutional legitimacy of the courts in other cases? The threat of under-implementation or non-implementation lingers in Canadian Charter cases where section 33 is not invoked, and so developing a new form of ineffectual jurisprudence seems strategically misguided for an institution that relies on others to carry out its will.

This thought experiment leads to my final point. If the Supreme Court of Canada mistakenly grants constitutional benediction to judicial declarations about laws invoking section 33, then it could be making considerably more work for itself.

Declarations are likely to involve highly politically volatile matters where the reputation of the judiciary hangs in a delicate balance, and the fact that declarations will not render laws invoking section 33 inoperable may embolden lower courts to set out on wild adjudicative adventures. Advocates of declarations underestimate the possibility that declarations could cyclically lead to yet more invocations of section 33, and then more declarations, with the result that it would fall to the Supreme Court of Canada to police lower court declarations that could misinform voters or unwisely tarnish the judiciary as an institution.

Such are the perils of speaking out of turn.

Suggested citation: Geoffrey Sigalet, “The Perils of Speaking Out of Turn,” Constitutional Theory Monitor (29 April 2026), online: https://constitutionaltheorymonitor.substack.com/p/the-perils-of-speaking-out-of-turn

This post is part of a Symposium on the Notwithstanding Clause Appeals.

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Jesse Hartery is a Ph.D. candidate at Melbourne Law School, Research Fellow at the Université de Fribourg and former Law Clerk to Justice Nicholas Kasirer at the Supreme Court of Canada.

This symposium is on section 33 of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada appeals on the subject that are being heard in 2026. In this introduction, I highlight the context and details of the appeals. This post will be followed by the posts of various contributors in the weeks to come.

The Context

Section 33 of the Canadian Charter (known as the ‘notwithstanding clause’) permits the federal Parliament and sub-national legislatures to allow their own legislation to operate notwithstanding judicial interpretations of certain rights provisions, namely fundamental freedoms (s. 2), legal rights (ss. 7-14), and equality rights (s. 15).

The model of constitutionalism instituted by the clause, sometimes known as ‘weak-form judicial review,’ is often said to have been kicked off by Canada, before making its way to countries like the United Kingdom, New Zealand and Australia. It has also featured in broader discussions in theory and practice. By way of example, it has sometimes stood in contrast to American-style ‘strong-form judicial review’ in discussions over the ‘countermajoritarian difficulty.’

The notwithstanding clause was included at the request of provincial premiers and was part of additions made to the Canadian constitution in 1982. However, these changes were achieved without the consent of Quebec. That province became the first to use the clause in every law already in force and continued to use it in new legislation, largely in protest. At the time, it did not use a similar clause in the provincial Charter of Human Rights and Freedoms.

In 1988, the Supreme Court of Canada was called on to determine whether these invocations of the clause were constitutionally compliant. In Ford v. Quebec, a unanimous court held that they were.

Since then, Quebec has continued to use the clause on occasion and a similar clause in its provincial Charter of Human Rights and Freedoms. This is sometimes necessary because the Supreme Court of Canada has concluded that “symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable.” The clause has been invoked less often outside Quebec. However, in recent years, it has been invoked in Ontario, Saskatchewan and Alberta.

The Appeals

The Quebec appeal concerns the Act respecting the laicity of the State (also known as ‘Bill 21’). Its purposes include affirming the laicity (or secularism) of the state and specifying the general obligations arising therefrom, prohibiting listed persons from wearing religious symbols in the exercise of their functions and requiring those persons to perform their functions with their face uncovered. It invokes the notwithstanding clause in relation to sections 2 and 7-15 of the Canadian Charter and a similar clause in the provincial Charter of Human Rights and Freedoms.

This followed wider discussion in Quebec, the grant of a stay in relation to similar legislation adopted in 2017 based on an application regarding section 2 of the Canadian Charter and an intervening provincial election. The legislation was introduced on March 28, 2019, and passed on June 16, 2019. It was supported by the governing Coalition Avenir Québec and the Parti Québécois opposition, which represented 67.6% of the legislature. It was opposed by two opposition parties: the Liberal Party and Québec solidaire.

The legislation was challenged on various grounds, namely for being inconsistent with: (1) the federal division of legislative authority, (2) pre-federation statutes, (3) unwritten principles, (4) minority language rights, (5) democratic rights, and (6) various limits on the notwithstanding clause.

The notwithstanding clause raises several issues. The first is that the invocation is invalid because it does not meet certain substantive requirements, such as pursuing pressing and substantial objectives. The second is that the courts should revisit the Supreme Court of Canada’s case law, including the 1988 case, because the case raises new legal issues or a change in circumstances, including developments in international law and the rise of populism in the Western world. The third is that the courts should issue declarations of incompatibility or other remedies even when the clause is invoked. The fourth is that section 28, which provides for gender equality in the exercise of rights, blocks an invocation of section 33 in this case.

The Court of Appeal dismissed almost all the relevant grounds. It only found a breach of democratic rights to the extent that the legislation applied to members of the legislature. The application judge would have gone further, also finding a breach of minority language rights to the extent that the legislation applied to English-language schools. These rights cannot be covered by the notwithstanding clause.

The Saskatchewan appeal concerns the Education (Parents’ Bill of Rights) Amendment Act, 2023, which was passed in 2023. It incorporated government policy concerning student names and pronouns into legislation. It provides that if students under the age of 16 request that schools use preferred first names and pronouns, parental consent is required. It invokes the notwithstanding clause in relation to sections 2, 7 and 15 of the Canadian Charter.

This followed the grant of a stay in relation to the government policy based on an application regarding sections 7 and 15 of the Canadian Charter, and arose in the context of a wider discussion also taking place in New Brunswick and Alberta. The legislation was introduced on October 10, 2023, and passed on October 20, 2023, after an intensive period of emergency debate. It was supported by the governing Saskatchewan Party and the Saskatchewan United Party opposition, which represented 76.9% of the legislature. It was opposed by the New Democratic Party opposition.

The challengers sought to amend their application to seek a declaration of incompatibility with sections 7 and 15 of the Canadian Charter, and an invalidation of the legislation pursuant to section 12 of the Canadian Charter. The latter section was not included in the legislature’s invocation of the notwithstanding clause. Saskatchewan objected.

The application judge granted the amendments and concluded that the court retained the ability to issue a declaration of incompatibility despite the invocation of the notwithstanding clause. A majority of the Court of Appeal agreed. The dissenting judge would have adopted the reasoning of the Quebec Court of Appeal in relation to declarations of incompatibility and struck the section 12 issue.

The Symposium

This symposium arises after the Quebec appeal has been heard and prior to the hearing on the Saskatchewan appeal. In the posts that follow, contributors will react to issues that arose in the hearing of the Quebec appeal. There will be two posts per week.

These scholars and theorists come at the issues from different angles. They cover four main themes by: placing the notwithstanding clause in legal and political perspective, considering limits beyond those articulated by the judiciary, highlighting the values underpinning the notwithstanding clause, and anchoring the notwithstanding clause in broader constitutional and theoretical perspective.

They provide analyses that will undoubtedly spur ongoing reflection and discussion by the judiciary, the legal profession, the academy and the public.

Suggested citation: Jesse Hartery, “Introduction to the Notwithstanding Clause Appeals Symposium,” Constitutional Theory Monitor (27 April 2026), online: https://constitutionaltheorymonitor.substack.com/p/introduction-to-the-notwithstanding

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The first symposium will be on the Canadian notwithstanding clause appeals that are being heard by the Supreme Court of Canada in the coming months. The hearing in the Quebec case starts on Monday and is scheduled for March 23-26, 2026. The symposium will feature reactions from scholars and theorists to issues raised during the hearing, and will occur prior to the hearing of the Saskatchewan case.

The contributors to this symposium will be the following:

• Aileen Kavanagh (Trinity College Dublin, Ireland)

• Andrea Lawlor (McMaster University, Canada)

• Dave Guénette (Université de Sherbrooke, Canada)

• Dwight Newman, K.C. (University of Saskatchewan, Canada)

• Erin Delaney (University College London, United Kingdom; Northwestern Pritzker School of Law, United States)

• FL Morton (University of Calgary, Canada)

• Geoffrey Sigalet (University of British Columbia, Canada)

• Jesse Hartery (Melbourne Law School, Australia; Université de Fribourg, Switzerland)

• Richard Bellamy (University College London, United Kingdom; Hertie School’s Jacques Delors Centre, Germany)

If time permits, we may also get a contribution from Annabelle Lever (Sciences Po Paris, France) and Rosalind Dixon (University of New South Wales, Australia).

The contributors will have a month to reflect on the issues raised during the hearing and posts will begin in late April or early May. For readers unfamiliar with the cases, there will be an introductory post to the symposium highlighting the salient details. Stay tuned!

On February 16, 2026, in a somewhat unusual move, the Supreme Court of Canada asked the parties in the Quebec case on the notwithstanding clause to provide additional written submissions on issues that were covered by an invocation of the notwithstanding clause. The request reads as follows:

At the Court’s request, the parties (not including intervenors) are to provide additional written submissions by no later than 5:00 PM EST on March 2, 2026. These submissions should address whether the Act respecting the laicity of the State infringes freedom of conscience, religion, and expression (set out in sections 2(a), 2(b) of the Canadian Charter of Rights and Freedoms and section 3 of the Charter of Human Rights and Freedoms of Quebec) and the right to equality (set out in section 15(1) of the Canadian Charter of Rights and Freedoms and in section 10 of the Charter of Human Rights and Freedoms of Quebec) in an unjustified manner in a free and democratic society.

The deadline to submit was yesterday. The hearing is scheduled to begin on March 23, 2026.

The parties challenging the invocations of the notwithstanding clause have provided the written submissions requested and indicated that the legislation does infringe the relevant sections of the Canadian and Quebec Charters and is not justified in a free and democratic society.

However, the Attorney General of Quebec has not provided the written submissions requested. In addition, he has indicated that the request is inappropriate since the Quebec legislature has invoked the notwithstanding clause. The relevant portions of the Quebec government’s position are as follows:

The AGQ believes that the Court should not analyze or respond to these questions given the Quebec legislature’s use of the notwithstanding clauses found in the Canadian Charter and the Quebec Charter. To use the terms employed by the Court in the Ford decision, the Act respecting the laicity of the State is “exempt from the application” of sections 2 and 7 to 15 of the Canadian Charter and therefore cannot infringe them. The same applies to sections 1 to 38 of the Quebec Charter.

In accordance with the Court’s jurisprudence on section 33 of the Canadian Charter, the AGQ has always maintained, and continues to maintain, that such a debate simply cannot take place when a legislature invokes this constitutional provision. The opposite conclusion would significantly diminish the usefulness of section 33 of the Canadian Charter, which is the result of a major constitutional compromise…

If the Court nevertheless decides that such an examination is possible, it should not do so in this case, since the record as constituted does not allow these questions to be answered, the lower courts did not rule on these questions, and doing so would penalize the AGQ for having guided its conduct based on the state of the Court’s jurisprudence.1

Although the circumstances are different, this is somewhat reminiscent of Quebec’s decision in the 1990s to decline to participate in the Supreme Court proceedings that led to the Secession Reference on the basis that it was for the people of Quebec alone to determine their political future.

Overall, this may be an early manifestation of some of the risks discussed in my previous posts (see here and here), as well as by other scholars (see here and here).

These cases are already politically charged, but the federal government’s intervention in the cases to side with critics of provincial uses of the notwithstanding clause has given them a different colour. It is anyone’s guess what the fallout of the decisions could be if the Supreme Court sides with the critics.

It highlights that there may be a need to take the classical view of the notwithstanding clause and innovative developments in Manitoba more seriously. In this post, I engage with recent discussions on these issues and highlight similar developments in Quebec.

The Canadian federal system in crisis

In 2021, the Supreme Court upheld a signature federal policy on federalism grounds, over the objections of Alberta, Manitoba, New Brunswick, Ontario, Quebec and Saskatchewan. The federal government had largely won in two courts of appeal and lost in another. In an attempt to shore up its position, it hired external counsel: Guy Pratte, a seasoned litigator and partner at national law firm BLG. The gamble paid off and the legislation was upheld by a six-judge majority of the court.

Since the decision, however, some provinces, notably Alberta, Saskatchewan and Quebec, have resisted federal policies. Alberta’s resistance included an early proposal to ignore court decisions. One of the architects of the proposal argued that it was a necessary and justified measure because “Canada had fundamentally breached its constitutional agreement with Alberta.” The proposal eventually moderated, but provincial resistance has continued in different ways. (For greater discussion of these issues, see here and here). Canada now faces the prospect of secession referenda in Alberta and Quebec.

The debate over the notwithstanding clause, which permits a legislature to allow its own legislation to operate notwithstanding judicial interpretations of certain rights provisions, is only the latest terrain for this conflict. The clause was a core part of the constitutional compromise that led to the adoption of the Canadian Charter of Rights and Freedoms. Indeed, in a 1981 advisory opinion, the Supreme Court concluded that substantial provincial consent was needed to adopt a constitutional bill of rights. This was achieved under the condition that the notwithstanding clause would be included.

The provinces, particularly Alberta, Ontario, Quebec and Saskatchewan, are seeking to maintain this compromise and the classical view of the notwithstanding clause that flows from it. Various parties and interveners opposed to provincial invocations of the notwithstanding clause advanced the emergent view in the courts below.

Up until the case reached the Supreme Court, the federal government had largely declined to intervene in the debate. However, in September 2025, it filed written materials in the Quebec case that will be heard in March 2026 and sided with the critics. It also asked the court to place additional limits on the use of the clause.

The premiers of Ontario, Quebec, Alberta, Nova Scotia and Saskatchewan penned a joint letter to the Prime Minister of Canada calling the federal government’s position a “complete disavowal of the constitutional bargain” that led to the enactment of the Canadian Charter of Rights and Freedoms and requesting that he withdraw the materials from the court case. The editorial board of the Globe and Mail newspaper called the federal government’s position an “end run around the Constitution.”

This has weakened the appeal of the emergent view of the notwithstanding clause because it has increased the stakes if the Supreme Court decides to adopt this view. The possibility of backlash against the federal government and the courts is now more real.

The federal government has declined to change course. And once again, it has hired external counsel: the same Guy Pratte from the 2021 case mentioned previously. If history is a guide, the future may see more conflict. For example, Howard Anglin has suggested that “if the Court agrees with the [federal] government, it will detonate a constitutional crisis the likes of which we haven’t seen since the end of the Mulroney government.”

The classical view of the notwithstanding clause and advisory opinions

In my previous post, I explained that there are two primary views about the effect of the notwithstanding clause. The “classical view” is that an invocation of the notwithstanding clause generally ends the judicial conversation and prevents an invalidation remedy. The “emergent view” contends that an invocation of the notwithstanding clause prevents an invalidation remedy but does not prevent the judiciary from offering a declaration of incompatibility.

But I also noted that maintaining the classical view would not necessarily preclude judicial review or the judiciary’s ability to issue a declaration of incompatibility. This is because advisory opinions are an important part of constitutional practice.

Some may see this as a reason to adopt the emergent view. The argument would be that the courts could already do this work and the emergent view would simply extend it. But as I explained in my previous post, there are risks to this approach.

An issue with the emergent view is that the courts would be taking on this role, rather than merely responding to a provincial request to provide an opinion. And the issue now is that they would be taking on this role at the request of the federal government. The risk is that it sets up the courts and the provinces for an antagonistic relationship that may do damage to judicial legitimacy and the federal system itself. At least more so than may currently be the case. Indeed, some scholars have suggested that increased use of the notwithstanding clause stems in part from the court’s insufficient sensitivity to regional differences in rights adjudication (see also recent scholarship by Dave Snow and Mark Harding). On this view, more court intervention may only make things worse.

The next few years will be turbulent for the Canadian federal system no matter what the court decides. It may want to keep its capital to weather the storms ahead.

This is the advantage of Manitoba’s recent innovations. A few weeks ago, the Quebec Bar made a similar recommendation to the Quebec legislature: an automatic request for an advisory opinion to the Court of Appeal prior to the final adoption of legislation. This is slightly different from Manitoba’s approach, which would seek an advisory opinion after the invocation of the notwithstanding clause.

Recent invocations of the notwithstanding clause have often arisen in the context of a response to a stay of the application of provincial legislation by a lower court. For example, this was the case in Quebec in 2019 and Saskatchewan in 2023. These provinces have sought to give their legislation immediate effect and invoked the notwithstanding clause to do so. However, the net effect of the classical view is that these provinces may never know whether their legislation is constitutionally compliant or not on the merits. The ability to seek an advisory opinion allows them to find out if they choose to do so. If the legislation is constitutionally compliant, there would be no need to invoke or renew the invocation of the notwithstanding clause.

More broadly, the judiciary’s involvement in this scenario would be more limited. It would not be triggered by private individuals or entities. In addition, the courts have a distinct concept of “justiciability” in the advisory opinion context. They do not provide advisory opinions if this would take them beyond their “proper role in the constitutional framework of our democratic form of government.” As a result, if the classical view is maintained, the courts are less likely to agree to provide an advisory opinion about provincial legislation that is initiated by the federal government. They also have residual discretion to decline to provide an advisory opinion. Therefore, if a province freely initiates this process, it may be less likely to create an antagonistic relationship with the courts. And it maintains the ability to reasonably disagree with the interpretation of the constitution offered by the judiciary.

The potential issue with the Manitoba legislation and Quebec Bar proposal is that they may be overinclusive due to their automatic nature. My sense is that they might be improved if a province was required to provide a justification if it decided to decline to seek an advisory opinion. This feature may also increase provincial willingness to consider this avenue.

At its heart, the main advantage of the notwithstanding clause is that it may leave greater space for elected legislatures in the face of reasonable disagreement over the meaning and scope of rights.

For proponents of weak-form judicial review, an advisory opinion may not always be necessary. For example, Alberta’s recent decision to invoke the notwithstanding clause to send striking teachers back to work likely does not require an advisory opinion from the courts. A 2015 case from the Supreme Court quite clearly expresses the view that this is impermissible. The Alberta legislature has reached a different interpretation and a request for an advisory opinion would likely offer nothing new. Other cases may be less clear, but the underlying rationale stands. If you accept that legislatures can offer an interpretation of rights, they may reasonably reach a conclusion based on a broader body of case law. This goes back to the discussion over ‘pre-emptive’ uses of the notwithstanding clause mentioned in previous posts.

For proponents of legislative supremacy who are not concerned with pre-emptive uses of the notwithstanding clause, there may be more arguments along these lines. By way of example, they might highlight potential distorting effects of an advisory opinion. This is something that may be particularly relevant in the Canadian context given that advisory opinions are usually treated as engendering political compliance.

For proponents of a stronger role for the judiciary, there may also be issues with an automatic approach. For now, advisory opinions are treated as judicial decisions. If the Supreme Court begins to issue advisory opinions that are truly advisory in nature on a routine basis, there is a risk that its authority over time may be weakened because non-compliance may become a new normal. In other words, more judicial intervention may create the conditions for a weakened judiciary in Canada.

In sum, the Manitoba legislation and Quebec Bar proposal provide promising avenues for reflection on the future of the notwithstanding clause. But an automatic approach may not be required or advisable.

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My previous posts are not necessarily legal or political in nature. There is an ongoing debate in Canada about whether the Supreme Court of Canada should continue to engage in judicial review of legislative action even when an invocation of the notwithstanding clause arises and to what extent. The classical view, notably expounded by Geoffrey Sigalet, and Maxime St-Hilaire and Xavier Foccroulle Ménard, is that an invocation of the notwithstanding clause ends the judicial conversation and prevents an invalidation remedy. But an emergent view, notably expounded by Grégoire Webber, and Robert Leckey and Eric Mendelsohn, contends that an invocation of the notwithstanding clause prevents an invalidation remedy but does not prevent the judiciary from offering a declaration of incompatibility. There are related views, but space does not permit a complete account of the intricacies of this discussion.

I have no strong views about this legal debate. So far, courts in Canada have split on the issue. The Quebec Court of Appeal has adopted the classical view, while the Saskatchewan Court of Appeal has adopted the emergent view. My sense is that the Supreme Court of Canada may also split on the issue, although it is likely to stay the course with the classical view.

However, I would add my name to the list of scholars, such as Aileen Kavanagh, Geoffrey Sigalet and Vanessa MacDonnell, who contend that the need for limits on legislative and executive power does not mean there must be legal limits to the exclusion of political limits. I think Kavanagh puts this point best in her recent article “The Underuse of the Override,” where she offers the following reasoning:

But in political reality, such declarations may confuse the electorate about the status of the Charter, discredit the courts for meddling in political matters, increase political polarisation on an already contentious issue, and put judges and politicians on a collision course where the courts will be in the direct firing line. Section 33 allows for a limited legislative derogation from certain rights under specified circumstances, subject to various political, parliamentary, and public constraints. A choice was made in section 33 to limit and curtail the exercise of the override through political rather than judicial means. For the most part, the political limits built into section 33 have sufficed to secure the underuse of the override in Canadian politics.

Relatedly, I think Michael Plaxton offers thoughtful engagement with Kavanagh’s work that may interest readers.

To conclude, I have no strong views on the legal debate. My commentary has been primarily directed at the political and practical debates.

This brings me to a related point. On some level, the legal debate is somewhat overplayed. If the Supreme Court of Canada maintains the classical view, this will not entirely prevent judicial review or the judiciary’s ability to issue declarations of incompatibility in the Canadian context. This is because the judiciary can and does issue advisory opinions on a range of constitutional issues. Provincial governments sometimes ask their courts of appeal to issue advisory opinions on provincial or federal legislation. These can be appealed to the Supreme Court of Canada. The federal government sometimes asks the Supreme Court of Canada to issue advisory opinions on provincial or federal legislation. This practice can continue.

A recent development in Manitoba confirms this. In October 2025, Manitoba’s New Democratic Party Premier Wab Kinew introduced the Constitutional Question Amendment Act. The proposed legislation notably provides as follows:

If an Act of the Legislature contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms stating that a provision of the Act operates notwithstanding a provision of the Charter, the Lieutenant Governor in Council shall refer the Act to the Court of Appeal in accordance with this section, and the court shall consider the matter.

In other words, if the Manitoba legislature invokes the notwithstanding clause, the Constitutional Question Amendment Act provides that an advisory opinion on the constitutionality of the targeted legislation will be sought by the Manitoba Court of Appeal, which can then be appealed to the Supreme Court of Canada.

It is conceivable that the courts may decline to provide an advisory opinion in some cases. When they do decide to provide an advisory opinion, it is conceivable that they may sometimes conclude that the legislation is consistent or inconsistent with the constitution as they understand it. In the former case, there will be no need to renew the invocation of the notwithstanding clause and the constitutional issues will be settled because advisory opinions are in practice treated as judicial decisions in Canada. In the latter case, there will be a need to renew the invocation of the notwithstanding clause and Canada will once again have advisory opinions that are truly advisory in nature.

Editor’s Note: This post has been modified to reflect the fact that Manitoba’s proposed legislation has not yet passed.

43 members of the United Conservative Party (UCP) voted in favour, 33 members of the New Democratic Party voted against, and 1 member of the Alberta Party voted against. It is perhaps notable that the two members of the Alberta Party had voted in favour of these three pieces of legislation without an invocation of the notwithstanding clause in December 2024 when they were still members of the UCP caucus. They were both removed from or left caucus in March and April 2025 over issues that are not related to these pieces of legislation. This time, Peter Guthrie, the Member of the Legislative Assembly for Airdrie-Cochrane, voted against Bill 9 and Scott Sinclair, the Member of the Legislative Assembly for Lesser Slave Lake, abstained.

On the issue of deliberation, I will limit myself to the process in the legislature. As I explained in my previous post, this may sometimes be only a partial picture of the deliberation and accountability that may occur in a democratic society.

I observe that the legislation was not amended and was the subject of debate between November 18 and December 9, 2025. During this period, it was directly debated on 7 sitting days and, on my count, was the subject of debate during Question Period on at least two days. By way of comparison, a previous bill, the Back to School Act, invoking the notwithstanding clause to send striking teachers back to work was introduced and passed within 24 hours in October. It should be noted, however, that the government justifies this manner of proceeding in part because it follows “the longest provincial wide education strike in Canadian history.”

In my previous post, I mentioned three aspects that may be particularly salient in the deliberative process: (1) how the measures are an articulation of rights and freedoms; (2) why an invocation of the notwithstanding clause is appropriate in the circumstances; and (3) why the timing is appropriate. Each of these issues was discussed in the Legislative Assembly, albeit to differing degrees. The first two aspects were debated more extensively, while the debate related to the third aspect was more limited.

The measures as an articulation of rights and freedoms

The first aspect was in many respects a repeat of the debates that took place when these three pieces of legislation were initially adopted in 2024. At the time, those bills were debated in the legislature between October 31 and December 5, 2024.

The most complete intervention in the 2025 debates can likely be attributed to Jason Stephan, the Member of the Legislative Assembly for Red Deer-South and Parliamentary Secretary for Constitutional Affairs. He acknowledged competing views, spoke to each piece of legislation that was at issue, and explained how, in his view, they were an articulation of rights and freedoms. The most complete intervention in the 2025 debates from a non-lawyer can likely be attributed to Chelsae Petrovic, the Member of the Legislative Assembly for Livingstone-Macleod and Parliamentary Secretary for Health Workforce Engagement. She spoke from her perspective as a mother of a daughter who participates in sports and, perhaps given her background as a nurse, also spoke to the medical and scientific “data, research, and the evolving standards of care internationally.”

The invocation of the notwithstanding clause

The second aspect was more directly discussed by many members of the Legislative Assembly. Broadly speaking, there were two types of justifications offered for invoking the notwithstanding clause within the governing UCP. Some, like Mr. Stephan, argued that “[t]he notwithstanding clause is part of the Charter, and it’s to prevent … activist courts from moving outside their lane.” Others, like Mickey Amery, the Member of the Legislative Assembly for Calgary-Cross and Attorney General of Alberta, argued that the invocation of the notwithstanding was the result of a disagreement with the courts about the meaning and scope of rights and freedoms. For example, he said the following:

Bill 9 would ensure that these legislative changes will stand without further court delay or uncertainty. Madam Speaker, this uncertainty does not serve anyone. When children are at the centre of these court challenges, we have a moral imperative to move forward in the way that is in the best interests of children and their futures. The stakes are incredibly high. That’s why we’re moving forward with Bill 9, and that’s why this government is invoking the notwithstanding clause to bring an end to this uncertainty. Madam Speaker, the notwithstanding clause was included in the Charter for a reason. It is a constitutional tool designed to preserve the supremacy of democratically elected Legislatures when core public policy issues arise. Those who drafted the Canadian Charter of Rights and Freedoms recognized that courts have an important role, but they are not the only guardians of public interest.

Similarly, Glenn van Dijken, the Member of the Legislative Assembly for Athabasca-Barrhead-Westlock, articulated his position as follows:

Mr. Speaker, the notwithstanding clause exists for moments precisely like this, moments when the will of the people expressed through their democratically elected representatives must be upheld with clarity and conviction. It exists so that when the stakes are this high and when the well-being of children and families is on the line, the authority of those who are directly accountable to the public, the elected legislative branch of government, is not overridden by those who are not elected, the appointed judicial branch of government.

We must remember that the notwithstanding clause is not an attack on the courts, nor is it a rejection of the important role judges play in interpreting our laws. Rather, it is a constitutional safeguard written intentionally into our Charter to ensure that ultimate decision-making power in a democracy remains with the people. The people choose the elected people to represent them. Judges are appointed; legislators are elected. Judges interpret the law; legislators create it. Both roles matter, but only one is ultimately answerable to the voters. The notwithstanding clause protects that balance.

The timing of the invocation of the notwithstanding clause

Finally, the third aspect was arguably only indirectly mentioned by members of the Legislative Assembly, although this may be the subject of debate. This may be the least satisfactory aspect of the deliberation and accountability in this process.

The most complete intervention on this issue can likely be attributed to Adriana LaGrange, the Member of the Legislative Assembly for Red Deer-North and Minister of Primary and Preventive Health Services. For example, she said the following:

Mr. Speaker, these principles are at risk due to ongoing litigation. Three lawsuits have been launched, and one injunction is already in place. These challenges could take years – years – during which time children may be exposed to irreversible medical interventions without the safeguards we have put in place, years during which parents may be sidelined, years during which uncertainty hangs over classrooms and sports organizations.

This is why Bill 9 invokes the notwithstanding clause. This is not a decision any government takes lightly, but it is a decision that responsible governments must be willing to make. I dare say it is a bold, courageous decision. Invoking the notwithstanding clause ensures that policies designed to protect children and strengthen families can continue without lengthy legal delays. It ensures clarity for health care providers, educators, and for parents, and it ensures that decisions about Alberta’s children remain with those who are accountable to Albertans, not to activist groups, legal delays, or shifting judicial interpretations.

Mr. Speaker, Bill 9 is not about politics. It’s about children. Let’s put children first. It’s about their futures, and it’s about ensuring that Alberta remains a place where children can grow up safe, supported, and surrounded by adults who put their best interests first.

If I understand it correctly, the justification for the timing may be twofold. The first is related to the stay that is already in place. The justification is that the legislature is responding to this judicial decision to ensure the legislation continues to apply. The second is related to an anticipation that the other two pieces of legislation may also be stayed and the legislature must ensure the legislation continues to apply. As mentioned previously, this argument may be stronger for the Education Amendment Act due to similar legislation in Saskatchewan also receiving a stay. But it may be weaker for the Fairness and Safety in Sport Act. It might be argued that this conclusion is reached based on the reasoning used by the courts in these two interim judicial decisions (in addition to the wider body of case law) and how the legislature is predicting that reasoning may play out in relation to the Fairness and Safety in Sport Act. But the counterargument may be that the legislature is ignoring the courts due to the timing for invoking the notwithstanding clause.

This also speaks to the discussion about the ‘pre-emptive’ use of the notwithstanding clause. Some scholars, particularly those who advocate for legislative supremacy, are not concerned with pre-emptive uses of the clause. They might defend the lack of debate on this issue from this perspective. But scholars who accept the point in principle might raise arguments for or against the timing like those mentioned above. If we consider deliberation and accountability in a broader perspective, it is perhaps notable that the media did press the government on this point, specifically emphasizing “why it was urgent to shield the school and sports laws from court challenges.” The Attorney General of Alberta is reported as having said that the government did not want to come back to the legislature to invoke the notwithstanding clause multiple times. This could be interpreted in two ways. The first is consistent with Ms. LaGrange’s speech. The second is an efficiency argument that does not engage with the role courts may play in a system with weak-form judicial review.

Next Steps

The adoption of these laws does not end the debate. In the short-term, the opposition parties may continue to hold the government to account on this issue, both inside and outside the legislature. Similarly, individuals within the governing party may continue to discuss whether the proper balance has been achieved, particularly as these laws are operationalized in practice. In the short- to medium-term, Albertans will have a say at the ballot box, at the latest in the general election scheduled for 2027.

This may occur prior to the general election because Alberta, unlike many other provinces in Canada, has ‘recall’ legislation, which is a process by which members of the Legislative Assembly may be removed from office. At the time of writing, at least 21 members are facing recall efforts, including Premier Danielle Smith. However, I note that there is debate about the political norms surrounding recall legislation. The government contends that recall is meant only “to address breaches of trust, serious misconduct, or a sustained failure to represent constituents, not political disagreements.” On this view, the use of recall in this context is inconsistent with deeper constitutional principles and norms.

At a minimum, these laws will be subject to another debate and vote in the legislature in five years pursuant to subsection 33(3) of the Canadian Charter of Rights and Freedoms.

This post will be much longer than those that will follow in order to set the table, so to speak, about some of the issues that will be highlighted in the Monitor. Going forward, when similar issues arise, I will refer readers back here.

Over the last decade, Canada has seen prominent uses of section 33 of the Canadian Charter of Rights and Freedoms (also known as the “notwithstanding clause”). This trend is now continuing in Alberta, one of Canada’s Western provinces, which is led by United Conservative Party Premier Danielle Smith.

The notwithstanding clause in Canada

This section of the Canadian Charter permits the federal Parliament and provincial legislatures to allow their own legislation to operate notwithstanding judicial interpretations of certain rights provisions, namely fundamental freedoms (s. 2), legal rights (ss. 7-14), and equality rights (s. 15).

Therefore, Canada has ‘weak-form judicial review,’ wherein judicial review is introduced in a constitutional order but where it may be non-final in the short- to medium-term. Whether judicial review of this variety is ‘weak-form’ in practice is a matter of some debate. The main advantage of such a design is that, like legislative supremacy that involves no judicial review, it may leave greater space for deliberation and accountability by and through elected legislatures in the face of reasonable disagreement over the meaning and scope of the rights individuals may hold. This may be particularly salient in federal systems, in which diverse approaches to the issues that may arise in the life of a democratic society are an expected and may be an advantageous feature. At the same time, it holds out the promise that the contestation and right to a hearing that may characterize judicial review may be guaranteed to rights holders in some form irrespective of what the legislature ultimately decides to do in exercising the ‘final word.’

At the time of its adoption in 1982, the notwithstanding clause was embraced by political leaders on the left, such as Saskatchewan Premier Alan Blakeney, and the right, such as Alberta Premier Peter Lougheed. The clause continues to have its supporters on both the left-wing and right-wing of politics. It also has its critics. Some would prefer legislative supremacy, while others welcome judicial supremacy.

Some rights are excluded from this design, such as the democratic rights (ss. 3-5), mobility rights (s. 6), language rights (ss. 16-23), and gender equality in the exercise of other rights (s. 28).

Alberta’s proposed invocation of the notwithstanding clause

On November 18, 2025, the Alberta government introduced Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, 2025. The legislation proposes to amend three pieces of legislation to invoke the notwithstanding clause:

• Health Statutes Amendment Act: prohibit regulated health professionals from performing gender-affirming surgery on anyone under the age of 18, and ban health professionals from prescribing puberty blockers or gender-affirming hormones to anyone 15 and under, and mandating parental, physician and psychologist approval for 16- and 17-year-olds to get such treatment.

• Education Amendment Act: mandate that parents be notified if a student uses a different name or pronouns at school, and that parents must opt in to their kids receiving any instructional materials that deal primarily and explicitly with gender identity, sexual orientation or human sexuality.

• Fairness and Safety in Sport Act: ban transgender women and girls from women’s divisions of school, collegiate and provincially regulated sports competition.

The substantive merits of these laws have been the subject of debate, with some expressing views in favour and against. The debate will now continue in the Legislative Assembly of Alberta. The governing United Conservative Party holds 47 seats, the New Democratic Party Official Opposition holds 38 seats, and the Alberta Party holds 2 seats in the Legislative Assembly.

Beyond the merits, two points stand out from the perspective of constitutional theory and practice: (1) the ‘pre-emptive’ use of the clause; and (2) the deliberative process in relation to issues affecting child and adolescent minorities.

Pre-emptive use of the clause

These potential uses of the notwithstanding clause are relevant to a broader discussion on the ‘pre-emptive’ use of the clause. Broadly speaking, this discussion centers around uses of the notwithstanding clause that occur prior to judicial decisions. In the Canadian context, this is salient because it prevents the availability of an invalidation remedy or judicial review entirely.

However, the concept may sometimes be difficult to identify in practice. By way of example, it might be argued that Québec’s use of the notwithstanding clause in 2019 in An Act respecting the laicity of the State is ‘pre-emptive’ because there has been no judicial decision on the constitutionality of the specific law at issue. On this view, the legislature is ignoring the judiciary and there is effectively no inter-institutional interaction. But it might also be argued that the invocation is not ‘pre-emptive’ because it arises against the backdrop of a body of case law built up since 1982. On this view, the legislature is arriving at its understanding of the meaning and scope of rights after a longer-term inter-institutional interaction.

These issues arise in the Alberta case. In some respects, it might be argued that Alberta’s proposal to invoke the notwithstanding clause is ‘pre-emptive’ in that it comes before a judicial decision has been rendered on the constitutionality of the specific laws at issue. This may be particularly so in relation to the Fairness and Safety in Sport Act, which has not been the subject of any judicial decision. In addition, there is a more limited body of case law on the issue of non-binary and transgender equality rights, for example. The Supreme Court of Canada has yet to consider the issue directly. On this view, there is no inter-institutional interaction taking place.

In other respects, however, it might be argued that Alberta’s proposal to invoke the notwithstanding clause is not ‘pre-emptive’ because it follows an interim judicial decision staying the application of one of these laws, the Health Statutes Amendment Act, while the merits are decided, as well as an interim judicial decision in the neighbouring province of Saskatchewan in relation to policies similar to those found in the Education Amendment Act. Interim judicial decisions of this kind involve some consideration of whether the case raises a serious legal issue, the likelihood of irreparable harm, and countervailing public interest considerations. Some scholars have also pointed to broader comparative trends that may be in tension with these interim judicial decisions. The legislature may be understood not as ignoring the judiciary, but rather as responding to these judicial decisions and reasonably disagreeing with the meaning and scope of the rights at issue. More broadly, there is a backdrop of a body of case law on age discrimination, sex discrimination and parental rights, for example, built up since 1982. On this view, the invocation of the notwithstanding clause is part of a shorter-term and longer-term inter-institutional interaction.

This case will therefore be relevant to ongoing scholarly and practical discussions about the timing of potential invocations of the notwithstanding clause.

The deliberative process and issues affecting child and adolescent minorities

These potential uses of the notwithstanding clause are relevant to a broader discussion about the manner in which the clause is invoked. Broadly speaking, this discussion centers around the nature of the deliberation and accountability that is appropriate when the clause is operationalized in practice. In the Canadian context, this may be salient because Westminster-style parliamentary systems may be characterized by ‘executive-dominance’ and provincial legislatures (that is, sub-national legislatures) in particular are unicameral, unlike their Australian cousins. More broadly, in this case, the specific laws at issue concern individuals who, in addition to being minorities, are not part of the legislative process and are not in a position to make their views known at the ballot box (i.e. children and adolescents).

In some cases, it might be argued that drawn out debate may not be necessary or advisable. But, as a general rule, a minimum threshold of political norms of behaviour is a sound path. More broadly, the case for the legislature to have the ‘final word’ is strongest when an explanation is provided as to why a particular path better balances competing rights and interests than potential alternatives, and different perspectives are heard and considered in good faith. In some cases, it may be advisable to seek out different perspectives if they are not present in the legislature or ensure enough time for debate to compensate for aspects of the process that may be less than ideal.

These issues arise in the Alberta case. In some respects, it might be argued that executive-dominance is counterbalanced by the debates that may arise within brokerage parties, such as the governing party at issue, which is home to factions, particularly since a merger in 2017. In other words, what may seem like consensus on its face may have gone through a partial process of give-and-take internal to a political party behind closed doors. For instance, it may be the case that some elements of the governing party advocated for a broader approach, while others preferred a narrower approach. Similarly, it might be argued that debates over the issues raised by these policies have been ongoing for almost two years in the province. This is in addition to the legal debate that has occurred to date. Relatedly, it may be notable that the decision to invoke the notwithstanding clause comes almost five months after an interim judicial decision. This is distinguishable from the immediate decision to invoke the clause in similar circumstances in Saskatchewan. This means the legislative debates are only part of the deliberative picture.

In other respects, however, it might be argued that there is a need to air and consider different perspectives during the legislative process, including from within the governing party on whether alternative policies may have been considered and why particular policies may have been chosen. This may be particularly important in a unicameral legislative body. The need to do so might be heightened in relation to the Fairness and Safety in Sport Act. Similarly, it may be argued that there is a special burden on elected representatives to deliberate more extensively (or seek out different perspectives) when the rights of child and adolescent minorities are at issue, and to consider alternative paths that may be raised. In particular, there may be a need to explain how the measures are an articulation of the rights and interests at issue, why an invocation of the notwithstanding clause is appropriate in the circumstances, and why the timing is appropriate.

This case will therefore be relevant to ongoing scholarly and practical discussions about the nature of the deliberative process that is appropriate when an invocation of the notwithstanding clause is being considered.

This initiative is meant to be a forum that highlights (and, in some cases, discusses) manifestations of issues in constitutional theory in practice, with a focus on inter-institutional dynamics between the political branches and the judiciary in democratic and federal societies. For context, this is coming from the perspective of a Canadian working and living in the Antipodes.

The aim is twofold. First, it will bring to light developments in constitutional practice that may be of interest to constitutional theorists. Second, it will place developments in constitutional practice in theoretical perspective in a manner that may be of interest to constitutional lawyers, politicians, and the media, among others.

The Monitor will likely evolve over time. At the outset, however, subscribers can expect to receive a monthly post highlighting a development in constitutional practice that has links to elements of constitutional theory. In the short- to medium-term, subscribers can expect a focus on the Canadian context, where inter-institutional dynamics between the political branches and the judiciary have increased in salience. Over time, this may come to include posts from guest contributors and symposia focusing on particular developments, among other things.

Stay tuned!