The Supreme Court of Canada (SCC) is holding hearings in the matter English Montreal School Board, et al. v. Attorney General of Quebec, et al.  Before you yawn and walk away, this is probably the single most important SCC case in 20 years.  I’ve written about the arguments in some depth here.

Among the issues on the table is very much the question “Does the Charter of Rights and Freedoms truly apply to all Canadians, or do we have a patchwork of rights where provinces decide what rights are available to Canadians living in their borders?“.  Do I have your attention yet? 

Let’s talk about that:

Context

Quebec’s “Bill 21” is ostensibly about guaranteeing that Quebec is a “secular state”, and it does so by banning anyone who works in the Public Service from wearing religious symbols.  When it tabled the legislation, it invoked the Notwithstanding Clause (NWC – S33 of the Charter of Rights and Freedoms (The Charter)) to insulate it from Charter challenge.  The obvious issue here is that this legislation is a substantial infringement on the freedoms guaranteed under S2 of The Charter.  

Okay – what does this have to do with anybody outside of Quebec?  A lot.  Provincial governments (all of them conservative) have been rather aggressive in declaring the application of S33 to insulate laws they are passing in recent years.  Here in Alberta, the UCP passed 4 pieces of legislation which invoked S33 in the Fall 2025 sitting of the legislature.  Not 1, not 2, but 4.  That’s a legislative record outside of 1980s Quebec. 

What does this mean?  Well, fundamentally, it ends up opening the question of whether or not the rights laid out in The Charter are truly guaranteed to all Canadians.  The alternative is that Provinces gain the power to legislate away rights and we have a regional patchwork where the rights available to Canadians are determined by provincial legislatures. 

The Questions The Court Is Faced With

The SCC has a lot to consider where S33 (The Notwithstanding Clause – NWC) is concerned: 

1). Is S33 solely for short term emergency use?

This is a big deal – if, as the Federal Government asserts, it is intended to deal with exceptional conditions and emergency situations where it may be necessary to suspend rights temporarily, then many of the provincial uses of S33 are inherently illegal.

2). Does the renewal of the application of S33 by a provincial legislature amount to an unauthorized amendment to the Charter, bypassing the Charter’s Amending Formula as laid out in S38 of the Constitution?

Again, this is a hugely important question for the Court to consider. If that is found to be the case, that substantially limits the ability of provincial legislatures to create patchwork rights law in Canada.

3). How much weight is given to the language of “Guarantee” in the Charter?

This may seem like quibbling over language here, but the use of the language of Guarantee in the Charter is hugely important in this context. Provinces like Quebec and Alberta have both used S33 to insulate legislation that abridges minority rights for largely ideological reasons, and clearly intends to extinguish those rights in the long term. If the SCC allows these applications of S33 to stand, then it is necessarily diluting the importance and weight of the language of guarantees throughout the Constitution and Charter – this creates enormous legal uncertainty in Canada.

4). Protection of Minority Rights

One of the major features of The Charter and its application in Canadian legal precedent since 1983 has been its role in protecting minority rights. Given that the issues around Quebec Bill 21, Alberta bills 26, 27, and 29, and Saskatchewan’s use of it to restrict transgender pronouns in schools all attack minorities in one manner or another, allowing these abuses of power to stand is an enormous problem in Canadian law.

My Thoughts

While I am certain that both Alberta and Quebec will argue “culture” to support their positions, that stands in stark contrast to literally decades of precedent where the SCC has generally applied the Charter favourably in terms of protecting minority rights.

A simplistic reading of S33 – which is what provinces like Alberta are arguing for is dangerous to the cohesiveness that the Constitution brings to Canada.  Granting provinces what amounts to an unrestricted “clobber power” to override rights laid out in The Charter and in 40 years of case law without boundaries on the exercise of that clobber power has the potential to dismantle Canada’s social fabric by turning basic rights that should be enjoyed by all Canadians into a patchwork of varying rights depending on which province one happens to reside in.  

I very much agree with the Attorney General of Canada’s argument that repeated renewals of S33 can be seen as effectively being an amendment to The Charter that bypasses the amending formula.  Provinces which wish to engage in such practices should be forced to show that there is justification for their laws over and above that of the “because I said so” that invoking S33 amounts to.  

Where Alberta is concerned, I believe Danielle Smith is engaging in the most cynical of politics – a power grab at the expense of the province’s minority communities.  That, by itself should be enough to cause the SCC to stand up and take notice.