Canada is torn over the notwithstanding clause

The Big Story explores the constitutional crisis surrounding Quebec's Bill 21 and the controversial use of Canada's notwithstanding clause (Section 33) in the Supreme Court's most significant hearing in years. The episode examines how Bill 21, which bans religious symbols for public sector workers, was shielded from judicial review by Quebec's invocation of the notwithstanding clause—a provision meant to allow provinces to override court decisions on Charter rights. Historian Max Fawcett traces the clause’s origins in the 1982 Constitution negotiations, noting its intended use as a last resort, yet reveals how recent provincial governments—especially in Ontario, Alberta, and Saskatchewan—have increasingly used it preemptively, even for laws they know are unconstitutional. The Supreme Court’s deliberations center not just on Bill 21, but on whether provinces can bypass judicial scrutiny entirely. Fawcett argues the courts may not strike down the clause outright but instead impose transparency measures, such as requiring public disclosure of which rights are suspended when the clause is invoked. He warns that while the public remains largely unaware, the gradual erosion of constitutional rights through routine use of the clause poses a long-term threat to Canada’s democratic fabric. Ultimately, the episode frames the decision as a test of civic responsibility: if Canadians don’t care about the erosion of rights, then the system will reflect that indifference.