What to expect from the Supreme Court ruling on Quebec’s secularism law

Veritas (Truth) guards the entrance to the Supreme Court of Canada, with the Peace Tower in the background, in a photo taken on 25 April 2014 in Ottawa. (Adrian Wyld/The Canadian Press)

Ottawa is asking the Supreme Court to rule on the preventive use of the notwithstanding clause.

The Quebec CAQ government used this exceptional measure to protect Bill 21 on state secularism from the courts.

What impact could a court ruling on this issue have?

• READ MORE: Five things about the province’s contentious secularism law

The Canadian Press takes stock with two constitutional experts.

Louis-Philippe Lampron is categorical: “This will be one of the most important constitutional decisions of the last few decades, nothing less,” said the Laval University Faculty of Law professor.

In his view, the Legault government’s preventive use of the notwithstanding clause in 2019 for Bill 21 is “extremely dangerous and problematic” because minority rights once again become “subject to the dictates and tyranny of the majority.”

In a brief filed last week, the federal government did not directly comment on Bill 21, but asked the Supreme Court to provide guidance on how provincial governments can invoke the notwithstanding clause.

The federal government argues that repeated use of this clause amounts to “indirectly amending the Constitution” and that the Court should be able to rule on whether this could result in “irreparable harm” to the rights of Canadians.

If the Supreme Court rules in Quebec’s favour and confirms that the notwithstanding clause can be used preventively without restriction, Lampron fears strong reactions.

“It will create an uproar because it confirms that Canada has a huge flaw in the effectiveness of its system for protecting human rights and freedoms, and if we ever have a Canadian Trump, it’s a gaping hole he could easily fall into,” he argued.

Conversely, if the Supreme Court rules that Quebec cannot use the clause preventively, Lampron believes the case could be sent back to the lower courts.

“Given the highly sensitive political nature of the case, I don’t see how it could be otherwise. But it’s up to the Supreme Court to decide,” he said. “There will be a very strong political reaction, and not just in Quebec.”

Alberta supports Quebec in its dispute with the federal government.

It has stated that the notwithstanding clause was a “hard-won compromise” during constitutional negotiations and that it preserves the parliamentary sovereignty of the provinces.

The prairie province plans to use the notwithstanding clause to amend three laws affecting transgender people.

In February 2024, the Court of Appeal upheld Bill 21 and affirmed that Quebec had the right to use the notwithstanding clause preventively.

‘I am surprised that we are having this debate’

Sherbrooke University constitutional expert Maxime St-Hilaire has a very different view of the issue than his colleague at Laval University. He said that he takes a “very dim view” of the federal government’s approach, because it “invites the Court to enter the political arena.”

St-Hilaire cannot understand why we are embroiled in this legal debate, when the purpose of the notwithstanding clause is precisely to remove a law from the courts.

“There can be a political debate. (...) However, I am surprised that we are having a legal debate on whether or not the preventive use of the notwithstanding clause is legal,” he said.

St-Hilaire also does not consider the preventive use of the notwithstanding clause to be contrary to the spirit of the Constitution.

“It is clearly provided for,” said the constitutional expert.

On the contrary, he argues that it is preferable to use the notwithstanding clause directly in the law, rather than waiting for it to pass the test of the courts and then invoking it.

“It puts judges in a very delicate position because they are in a bad position to do their job. If they hand down the judgement they want, well, they know there’s a good chance they’ll be overruled. This may be an incentive for judges to rule in a more complacent manner,“ St-Hilaire argued. “So it’s like an attack on the independence of the judiciary.”

The notwithstanding clause was enshrined in the Constitution when it was repatriated in 1982 and allows a law to override certain sections of the Charter. It must be renewed every five years.

This report by The Canadian Press was first published in French on Sept. 23, 2025.