25/03/2026
When Constitutional Hardball Threatens National Unity
There is a hearing underway at the Supreme Court this week that matters far more than most Canadians realize. Quebec's Bill 21, which bans some public sector workers from wearing religious symbols on the job, is being challenged alongside the province's use of the notwithstanding clause to shield the law from Charter scrutiny. The federal government has intervened, and five premiers are calling on Ottawa to withdraw its legal argument.
This is being framed in some "conservative" quarters as a federal assault on provincial rights. A backdoor constitutional amendment. A betrayal of the 1982 compromise that gave us both the Charter and Section 33.
But Calm Conservatives can be honest about what is actually happening here.
The challengers to Bill 21 want the Supreme Court to strike down the law, but are also seeking broader changes, including potential restrictions on how governments use the notwithstanding clause, or a finding on whether courts can issue judicial declarations of rights violations even when the clause is used. Ontario, Alberta, British Columbia and Saskatchewan are presenting arguments this week alongside dozens of intervener groups. This is not a quiet conspiracy as some right wing pundits would claim. It is a public, transparent legal process involving multiple levels of government and civil society.
The rhetoric around this case has become unmoored from reality. The federal government is not demanding that the Supreme Court strip provinces of the right to pass their own laws. Ottawa's argument is that constitutional limits on the notwithstanding clause preclude it from being used to distort or wipe out the rights and freedoms guaranteed by the Charter, typically the rights of minorities. That is a legal argument about the scope of a constitutional power, not an attempt to abolish it.
Section 33 was indeed a compromise in 1982. The premiers got a legislative override; Canadians got a Charter. But compromise does not mean one side gets everything in perpetuity while the other gets nothing. Recent years have seen provinces including Ontario, Alberta and Saskatchewan pre-emptively invoking the notwithstanding clause for issues ranging from stopping teacher strikes to setting guardrails for gender-affirming care. The clause has been used nine times by provinces over the last two years. That is not moderation. That is normalization.
Suggestions that anyvand every decision of an elected legislature should take primacy over an unelected court ignores the very protections our Charter embedded within our government. It prevents a tyranny of 51% from stripping the rights of the other 49% because it is popular or convenient. It protects the mere individual from the might of a collective state. What could be more conservative than that?
The question before the Court is not whether provinces have the right to use Section 33. They do. The question is whether pre-emptive use, without any judicial review, is consistent with the structure and purpose of the Charter. Quebec's lawyer argued that the province can use the notwithstanding clause without needing to justify the content of their legislation, since it effectively shields the law from court scrutiny. But Justice Nicholas Kasirer pushed back, saying there is nothing written in the Constitution that prohibits a judge from issuing a declaratory judgment on a law invoking the notwithstanding clause.
That is the debate. Not whether provinces can legislate. Whether they can legislate in a way that eliminates all accountability, all transparency, all deliberation about rights.
Conservatives should care deeply about this. We believe in limited government. We believe in checks and balances. We believe that power, once concentrated, tends to be abused.
The notwithstanding clause is a legitimate tool, but it was designed as a safety valve, not as a blank cheque. When it becomes the first resort rather than the last, when it is used to avoid difficult conversations rather than to resolve them, that's when our democracy is really in dangerous territory.