Ottawa says laws that override Charter rights aren't shielded from legal scrutiny

The political ramifications of the Supreme Court of Canada's ruling on Quebec's religious symbols ban could happen sooner than when the hearings wrap up.

OTTAWA — Judges must have the legal right to issue non-binding judgments in cases where governments override sections of the Charter of Rights and Freedoms, a lawyer for the attorney general of Canada argued in Supreme Court on Wednesday.

Guy J. Pratte pleaded his case on the third day of hearings at the country’s highest court on the constitutionality of Quebec’s 2019 secularism law known as Bill 21, which bans some public sector workers from wearing religious symbols on the job.

The controversial law is protected from court challenges that it violates fundamental rights, like freedom of religion and expression, because it invokes a section of the Charter that allows governments to override those rights. Quebec invoked the override clause in Bill 21 pre-emptively -- it included the section in the initial draft of the legislation, before it faced legal scrutiny.

Lawyers for the government said they are confident the top court will uphold its law. And while the court must decide whether Bill 21 is constitutional, the justices are also considering whether judges can issue non-binding opinions on laws that pre-emptively invoke the override clause -- even if they can’t strike down those laws.

On Wednesday, Pratte responded to the Quebec government’s position, expressed a day prior by Isabelle Brunet, who said non-binding judgments on laws that pre-emptively override the Charter are “useless” and amount to meddling in provincial politics. If a judge issues an opinion stating that a law violates fundamental freedoms, citizens could feel they have the moral authority to ignore it, Brunet said.

“It could create confusion since the law could be perceived as illegitimate,” Brunet told the court on Tuesday. “This could actually lead a person to disregard the law, given this court’s opinion.”

Pratte said the override clause -- also known as the Charter’s notwithstanding clause -- doesn’t eliminate rights altogether or prevent judges from issuing opinions on whether legislation violates fundamental freedoms.

“We should not confuse the possible political consequences of a judicial decision with the fact that it remains a judicial decision,” Pratte told the court. “The rights and freedoms of which you are the custodians continue to live at the heart of our institutional conscience and are indispensable guiding principles.”

Non-binding judgments, according to Pratte, serve to guide the electorate and future legislators who are evaluating the law. A law that invokes the override clause must be renewed every five years.

The high-profile case is being watched across the country because of its deep implications on the balance between citizens’ Charter rights and the independence of provincial legislatures. The Coalition Avenir Quebec says its Bill 21 is a reflection of the secular nature of the province’s culture and values, and the pre-emptive use of the override clause is essential to maintaining Quebec’s autonomy within Canada.

Lawyers representing the governments of Ontario, Saskatchewan and Alberta -- all of which are interveners in the case and have pre-emptively invoked the notwithstanding clause in recent years -- agree with Quebec that judges should not be able to issue non-binding declarations on laws that pre-emptively invoke that clause. British Columbia and Manitoba have sided with the federal government.

In August, Saskatchewan’s Court of Appeal said it had the right to issue an opinion that the province’s gender identity law for schools violated the Charter, even though the law pre-emptively invoked the override clause and the court was blocked from declaring the legislation unconstitutional. The law requires students under 16 to get parental consent before they can change their pronouns in school.

Quebec’s Court of Appeal, however, took the opposite stance with Bill 21 in 2024, saying it was not permitted to issue a non-binding opinion on the law.

Twenty-three lawyers pleaded their case to the Supreme Court justices Wednesday, touching on a slew of issues related to the constitutionality of Bill 21 itself, how the override clause can be used, and the role of judges in such cases.

Some interveners, like the Public Interest Litigation Institute, have asked the top court to revisit its 1988 judgment and prevent governments from using the notwithstanding clause pre-emptively. Lawyer Lawrence David said the override clause should be invoked only after a law has gone through the courts, not before.

Pre-emptive use of the override clause “enables legislatures to systematically deprive Canadians of their rights and freedoms,” he said Wednesday, and “is contrary to the Charter’s purpose as an instrument of human dignity and national unity.”

Various rights and lobby groups will argue before the Supreme Court on its final day of hearings Thursday.

This report by The Canadian Press was first published March 25, 2026.

-- By Erika Morris in Montreal