When: March 23-26, 2025
Where: Supreme Court of Canada, live webcast available
Ottawa, ON / unceded Anishinabe Algonquin Territory – The BC Civil Liberties Association (BCCLA) is intervening at the Supreme Court of Canada in the landmark case of English School Board of Montreal et al v Attorney General of Quebec. The decision in this matter will likely set a precedent regarding limits on the notwithstanding clause—sometimes referred to as the “override” clause in the Charter of Rights and Freedoms—and the availability of the courts after a government has invoked it. At a time when we are seeing an alarming increase in politicians and governments invoking or threatening to invoke the clause, this is more important than ever.
The case stems from a constitutional challenge against Quebec’s Bill 21, legislation passed in 2019 using the notwithstanding clause, which forbids people who work or aspire to work in the Quebec public service from wearing religious symbols – including hijabs, turbans, yarmulkes, and crosses. The bill violates Charter rights to freedom of religion and expression and has a disproportionate impact on Muslim women, as well as Sikhs, Jews, and racialized and newcomer communities.
The Quebec government’s argument that an invocation of the notwithstanding clause completely overrides court jurisdiction—even to issue a declaration whether the law in fact violates rights—was successful before the Quebec Superior Court and the Quebec Court of Appeal.
BCCLA is intervening in the appeal to ensure that the notwithstanding clause is correctly interpreted and the public has access to government accountability when the clause is invoked. BCCLA argues that the notwithstanding clause of the Charter does not strip courts of their ability to declare legislation unconstitutional or to order other remedies that may be available to individuals who have been harmed. The notwithstanding clause functions exactly as it is written and no further: it limits a court’s ability to strike down legislation and stop that legislation from operating, even if it is unconstitutional.
Ga Grant, BCCLA Litigation Staff Counsel says:
“It is extremely concerning that Quebec and other provinces are overinflating the notwithstanding clause in an attempt to completely oust the courts. The Court’s ability to issue declarations and other remedies is crucial in holding the government accountable when it chooses to violate constitutional rights. Court declarations ensure the public is informed when their government commits constitutional violations. This is essential to the democratic process and transparency in government.”
BCCLA is represented by Avnish Nanda and Anna Lund of Nanda Law.