The Supreme Court of Canada will soon hear a case that is its first chance since 1988 to opine on the notwithstanding clause in the Canadian Charter of Rights and Freedoms. It could be one of the most consequential rulings in modern history.

The case concerns Bill 21, a Quebec law that forbids certain public servants from wearing items that reflect their religious faith. Critics, myself included, believe this law flagrantly violates religious freedom, freedom of expression and other Charter rights and freedoms. Yet, the law enjoyed broad support in Quebec when it was enacted and that remains the case today.

Quebec preemptively invoked the notwithstanding clause – Section 33 of the Charter – to shield Bill 21 from review by the courts.

Subject to what the Supreme Court may decide, today’s prevailing legal consensus is that any use of Section 33 permits the affected legislation to function as if certain rights and freedoms guaranteed by the Charter do not exist. Such legislation operates, in the words of Section 33, “notwithstanding” those rights and freedoms. Freedom of expression, equality and religion are a few of the Charter rights and freedoms affected by Section 33.

Saskatchewan’s use of the notwithstanding clause reveals its fundamental flaw

Bill 21 offends the constitutional doctrine of neutrality to religion

The faulty received wisdom around the notwithstanding clause

The Quebec case has also touched off a political furor. The federal government has asked the Supreme Court to impose substantive limits on the use of Section 33. At least five provinces – all with Conservative premiers – have called upon Ottawa to withdraw its filing, saying adoption of its arguments by the court would threaten national unity by undermining provincial sovereignty. The federal government has rejected these calls.

Section 33 has always been controversial. It was added to the Charter at the last moment in 1982 to secure the necessary provincial support for adding a bill of rights to the Canadian Constitution during repatriation. In recent years, the notwithstanding clause has been used with greater frequency by provincial legislatures on a wide range of policy issues. Any use of Section 33 needs to be renewed every five years.

To date, the courts have endorsed the view that where Section 33 is attached to legislation, the judiciary can go no further than evaluating whether the legislature does so in a procedurally appropriate manner. In other words, courts can scrutinize its use for “manner and form” requirements but not whether it respects Charter rights and freedoms.

In its filing, Ottawa argues the courts should be able to declare rights have been violated by a law where the notwithstanding clause has been attached, even if use of the section means that the law cannot be struck down. More controversially, Ottawa has invited the Supreme Court to recognize that courts may invalidate its use if it causes “irreparable impairment” of Charter rights or freedoms that are implicated by Section 33.

Should the court endorse this approach, it would drastically transform the prevailing interpretation of Section 33. From the moment it was added to our Constitution, the notwithstanding clause has widely been understood as a provision that means the related legislation is essentially off limits for the courts – at least in terms of being able to pronounce on whether the law complies with certain aspects of the Charter and subsequently issue a remedy for non-compliance.

In a departure from this understanding, the federal government is arguing that courts may police the use of the section in respect of those aspects of the Charter. While the federal government takes no official position on the constitutionality of Bill 21 itself, one cannot help but wonder whether Bill 21 is the kind of legislation that would satisfy the proposed threshold of “irreparable impairment” of certain Charter rights and freedoms.

As a matter of constitutional interpretation, I disagree with the federal government’s arguments on how the judiciary may engage with Section 33. Its view is supported neither by the text of the notwithstanding clause nor the history surrounding Section 33’s adoption.

Even so, it is worth noting that the federal government has gestured – perhaps by accident – to what might be a core reason why Section 33 is the most controversial provision of the Constitution. In a nutshell, it is true that the use of the notwithstanding clause can – depending on how it is used – irreparably impair certain rights and freedoms guaranteed by the Charter.

However, using Section 33 does not invariably lead to this result. While it is often described as a provision that “overrides” certain Charter rights, it is rarely acknowledged that it could be used to safeguard other rights and freedoms or to achieve “course corrections” where a legislature believes that the courts have misinterpreted the Charter.

But surely the reason why someone like former prime minister Pierre Trudeau – one of the political architects of the Charter – lamented the inclusion of Section 33 was that it might be deployed in ways that would undermine and even negate certain Charter rights and freedoms. It is fair to wonder if Bill 21 is the sort of law that would have haunted Trudeau had he lived to see it.

I have argued elsewhere that our discourse on Section 33 would benefit from more nuance.

Supporting it does not automatically mean being against Charter rights and freedoms.Criticizing it does not necessarily equate to denigrating legislatures. One can favour it and believe that judges are fit to decide Charter cases. Reasonable people can disagree on whether courts or legislatures are better suited to interpret and protect basic rights, as well as what the optimal division between these two institutions should be when it comes to handling these rights.

Sadly, debaters on both sides often adopt an all-or-nothing stance: You must either be entirely in favour of its use or entirely against it. While it is heartening to see an increase in thoughtful scholarship and commentary in recent years that reflects a diversity of viewpoints, we still have work to do on this front.

I believe the federal government is correct in principle when it says the use of Section 33 has the potential to imperil certain Charter rights and freedoms. This seems to be an unavoidable conclusion given the design and capacity of the section.

Supporters can acknowledge this reality while maintaining their position that the notwithstanding clause is a valuable mechanism for a free and democratic society. On the other side, critics should be able to recognize that this constitutional provision can be put to good use.

While I hope the court rejects the federal government’s legally flawed invitation to place substantive limits on the use of Section 33, I also hope that the court does not reinforce the simplistic framing of the section that has gained far too much traction in our public discourse.

I wrote once that this discourse has the feel of an intellectual bar fight. The court has an opportunity to move the conversation in a more constructive direction. I hope it takes it.