Introduction to the Notwithstanding Clause Appeals Symposium
The Canadian Notwithstanding Clause Appeals
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