The Canadian Constitution Foundation at the Supreme Court this week in landmark case on scope of notwithstanding clause

OTTAWA – The Canadian Constitution Foundation (CCF) will be at the Supreme Court this week, from Monday, March 23 to Thursday, March 26, 2026, in Hak v Attorney General of Quebec, also known as English Montreal School Board v Attorney General of Quebec.

The case challenges the constitutionality of Quebec's Loi sur la laïcité de l’État (Bill 21), which bans certain public sector employees from wearing religious symbols while at work. The appeal concerns the validity of Bill 21, particularly in light of Quebec's use of the notwithstanding clause under section 33 of the Charter of Rights and Freedoms.

The hearing will be live streamed on the Supreme Court's website here:

The case raises a number of questions related to the scope of the notwithstanding clause, including whether pre-emptive use is acceptable, whether courts can issue declaratory or other relief, and whether the court can impose new substantive limits on the use of the clause.

The CCF's intervention will address whether courts can also award damages under section 24(1) of the Charter in the event that judges are allowed to make moot declarations. It will argue that doing so would undermine the purpose of the notwithstanding clause and upset the balance between courts and legislatures.

"This case raises important questions about the limits of judicial power when governments invoke section 33 of the Charter," said Josh Dehaas, Interim Litigation Director of the CCF.

"Section 33 was meant to give elected governments the final say about the content of rights, at least for five years at a time, which happens to be the maximum time frame between elections," Dehaas added. "Letting courts award damages anyway would upset that balance and was never the intention of the Charter bargain."

CCF Interim Executive Director Christine Van Geyn said the availability of Charter damages after section 33 has been invoked "is a vital matter to all Canadians."

"Canadian taxpayers will ultimately be responsible for any potential damages awards," Van Geyn said.

In the lead up to the case, the Canadian Constitution Foundation has released a new book explaining the background, context, and various issues raised by the parties and the interveners. Section 33 on Trial is available on Amazon.ca.

"The Bill 21 litigation is complex, and will have serious implications for Canada's Constitution and the relationship between courts and legislatures," said Van Geyn.

"This book is designed to clarify the issues at stake in the case for every day Canadians who want to understand what this case involves and what it might mean for our future," Van Geyn explained. "Section 33 on Trial gives Canadians a clear guide to the debate over the notwithstanding clause, and explains why the Supreme Court's decision in this case will define the future of Constitutional rights in Canada."

The CCF will be represented in this case by George Avraam, Haadi Malik, and Anton Rizor of Baker & McKenzie LLP.
LINKS: Memo of Argument

For further information, contact:
Christine Van Geyn
Executive Director (Interim)
Canadian Constitution Foundation
1-888-695-9105 x. 103
cvangeyn@theccf.ca

Josh Dehaas
Litigation Director (Interim)
Canadian Constitution Foundation
1-888-695-9105 x. 104
jdehaas@theccf.ca

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