Can Quebec use the notwithstanding clause to silence English rights?

Tashi Farmilo

A legal argument now before the Supreme Court of Canada could redefine how governments use the Notwithstanding Clause, with potentially far-reaching consequences for civil liberties and language rights across the country.

The Task Force on Linguistic Policy, a resident-led group advocating for English-speaking Quebecers, has submitted a legal brief urging the Court to rule that governments cannot use the clause to erase core rights and freedoms. Their intervention comes in the ongoing legal challenge to Quebec’s Bill 21, which bars public workers in positions of authority from wearing religious symbols.

While the case itself is focused on secularism, the Task Force’s submission focuses on the broader issue of how Section 33 of the Charter of Rights and Freedoms, known as the Notwithstanding Clause, is being used. The Quebec government has invoked the clause to shield both Bill 21 and Bill 96. Bill 96 is a controversial law that restricts access to English in education, health care, and government services.

“The government is using this clause to sidestep the Charter altogether,” said Andrew Caddell, president of the Task Force. “We’re asking the Supreme Court to make clear that some rights are so fundamental they cannot simply be overridden.”

The Task Force argues that the Charter, introduced in 1982, did not create new rights but instead confirmed longstanding protections rooted in Canadian and British legal traditions. These include freedom of expression, equality before the law, and the protection of minority groups. These values existed before the Charter and continue to guide Canadian law.

Their legal brief, prepared by constitutional lawyer Michael Bergman, argues that even when a government uses the Notwithstanding Clause, it should not have the authority to remove all legal protections. Courts, they say, must continue to uphold deeper constitutional principles, such as the rule of law and respect for minorities.

Vice President Geoffrey Chambers said the group is not asking for compensation or special treatment. “We’re simply asking the Court to confirm that basic rights don’t disappear just because a government says so.” He added, “This is not just about legal theory. It’s about protecting the kind of society we all want to live in.”