This case stems from a constitutional challenge against Quebec’s Bill 21, legislation passed in 2019 that violates Charter rights to freedom of religion and expression. It forbids people who work or aspire to work in the Quebec public service from wearing religious symbols – including hijabs, turbans, yarmulkes, and crosses. It has disproportionate impact on Muslim women, as well as Sikhs, Jews, and racialized and newcomer communities.

Individuals and groups challenged the Bill in court. However, the Quebec government invoked the notwithstanding clause in the Charter and claimed in court that this meant the courts had no jurisdiction to even issue a declaration as to whether the law violated rights.

The Quebec Superior Court found that invoking the notwithstanding clause means that courts cannot still issue a declaration as to whether Charter rights are violated. This was upheld on appeal. The English School Board of Montreal and other parties have appealed that decision to the Supreme Court of Canada.

The BCCLA is intervening in this appeal to ensure that the notwithstanding clause is correctly interpreted and that there is public access to government accountability when the clause is invoked. At a time when we are seeing an alarming increase in politicians and governments threatening to invoke or invoking the notwithstanding clause, this is more important than ever.

The BCCLA argues that section 33 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. Section 33 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. A reading of the clause that accurately captures its text, history, and context demonstrates that people can still access courts, and even obtain relief against the government when it breaches their constitutional rights. 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 crucial to the democratic process and transparency in government.