This article originally appeared in the National Post. Below is an excerpt.
By Kerry Sun, September 25, 2025
Legal manoeuvres in the Supreme Court of Canada may soon land the country in another constitutional crisis. Earlier this week, the Carney government, through Attorney General Sean Fraser, filed an intervention in the upcoming appeal on Quebec’s secularism legislation (Bill 21) at the Supreme Court.
Crucially, however, the federal government is not contesting the secularism law itself. Instead, it is urging the judges to impose novel restrictions on the use of the notwithstanding clause, which permits legislatures to shield laws from judicial review for a renewable period of five years. This legal argument, if accepted, would undo a key component of Canada’s constitutional settlement and further subordinate parliamentary government to adventurous exercises of judicial power.
Enacted as Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause was vital in the negotiations leading to the adoption of the 1982 Constitution. As historians have documented, the impetus for its inclusion in the constitutional settlement was the view, particularly favoured by Western premiers, that Canada should maintain continuity with the venerable British tradition of parliamentary supremacy and that a democratic safeguard is needed to check judicial excesses.
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Kerry Sun is a doctoral student at the University of Oxford and Research Associate at UBC’s Centre for Constitutional Law and Legal Studies
