The Quebec Court of Appeal’s ruling on Bill 21 was not only disappointing but also intensely frustrating. The ruling placed a fresh focus on the notwithstanding clause and more specifically on its advance or “pre-emptive” use.

The Constitution’s notwithstanding clause cannot be used to suspend all rights in the Charter of Rights and Freedoms. Minority-language education rights, for example, fall outside its reach as do democratic rights. But where the clause can be used, a government that invokes it is saying “our law applies even though we are violating Charter rights.”

I join the many others who believe the clause was only ever intended to be used in response to, that is following, a court ruling that a law violates the Charter.

When a government invokes the notwithstanding clause in advance of a law’s consideration by the courts, it hamstrings the judiciary, de facto preventing it from fully examining the law and potentially declaring all or parts of it unconstitutional. Pre-emptive use of the clause gives a government the first and last word on rights. In the process, a fundamental element of our constitutional democracy — court oversight in the interest of protecting minority rights — is neutered.

A government seeking to use the notwithstanding clause should, at minimum, wait for a court to have ruled that a given law violates the Charter before going to the legislature to get approval to invoke it. This would result in greater democratic accountability — a full and focused debate under the watchful eyes of the media and the public on the specific issue of invoking the clause. When the clause is invoked after the fact, a government must work harder and at greater political risk to justify why it feels compelled to suppress Charter rights that have been upheld by the court. It must be able to argue why the leeway already afforded by section 1 of the Charter was not sufficient. This is the section that allows for the limiting of rights but only where it is demonstrably reasonable to do so in a “free and democratic society”.

Regrettably, the governments of Quebec, Ontario and Saskatchewan have taken to using the notwithstanding clause pre-emptively to avoid full court scrutiny of controversial legislation. The Quebec Court of Appeal did not fully consider how Bill 21 might violate Charter rights because the Legault government chose to invoke the notwithstanding clause in advance of the law reaching the judiciary. The court therefore did not examine whether the law violates religious rights, equality rights or the right to freedom of expression because, presumably, it saw the questions as moot given the use of the clause. In the meantime, we are left in limbo about whether and how the law violates these rights.

The federal Liberal government is opposed to the pre-emptive use of the notwithstanding clause. In contrast, the Conservatives and Bloc Quebecois support the unfettered use of the clause and together expressed this support in a vote on a Bloc motion on the subject in the House of Commons in February 2023.

Now that the Quebec Court of Appeal has issued its limited ruling on Bill 21, the next step in the appeals process is the Supreme Court. Justice minister Arif Virani has stated unequivocally that should the highest court in the land agree to hear an appeal of the Quebec court’s ruling the Liberal government will be there to defend the Charter.