The Legal Effect of Section 33: What the Court Got Right and Wrong in World Sikh Organization v Attorney General of Quebec

Quebec’s Act respecting the laicity of the State (“Bill 21”) prohibits certain public sector employees from wearing religious symbols while performing their duties,^[1] prohibits certain public sector employees from delivering public services while wearing facial coverings, and prevents individuals accessing certain public services from doing so with their faces covered.^[2] The impact of these prohibitions, which clearly limit the religious freedom that is guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms (“Charter”),[3] is disproportionately felt by Muslim women, thereby raising equality rights issues under the Charter’s section 15 as well.^[4] The same is true for other religious minorities whose religious practice is more likely to include wearing specific items of clothing (e.g. Jews and Sikhs).

In an effort to block (at least some) Charter challenges against this law, the National Assembly invoked section 33 of the Charter, also known as the notwithstanding clause.^[5] While the notwithstanding clause is a legitimate tool at a legislature’s disposal, and was an important part of the 1982 constitutional bargain, Quebec’s use of the clause in Bill 21 has been criticized not only for being pre-emptive — i.e. for coming before any judicial decision on whether the law violates Charter rights — but also for going against fundamental rights that are supposed to protect some of the most vulnerable groups in a multicultural society.^[6]

These criticisms led to the case of World Sikh Organization of Canada v Attorney General of Quebec (“World Sikh Organization”), which was decided by the Quebec Court of Appeal (“QCA”) in 2024. In its judgment, the Court found that it would be unable to rule on the alleged Charter violations under sections 2(a) and 15, given that the notwithstanding clause “allows a given statute to be protected from constitutional review” under sections 2 and 7 to 15 of the Charter.^[7] Essentially, a finding of Charter infringement, which could only be found through substantive review, was made unavailable to the Court by the National Assembly’s use of section 33.

Section 33’s Legal Effect: The QCA’s Contribution to a Longstanding Debate

In making this determination, the Court of Appeal was articulating its understanding of the legal effect of section 33. This was an issue the Court grappled with throughout its decision and many of the points that the Court considered are uncontested understandings of how the clause operates. For example, the Court acknowledged that democratic, mobility, language, and minority language education rights are excluded from section 33, which is well established and beyond debate.^[8] It also highlighted that section 33 can only shield a law for five years, at which point it must be re-invoked (this five-year expiry rule is known as the “sunset clause”).^[9]

On this point, the Court of Appeal found that the sunset clause creates a check on legislatures; after five years, a legislature must answer to the electorate for their use of the notwithstanding clause.^[10] Citing Working Families Coalition (Canada) Inc v Ontario (Attorney General), the Court of Appeal emphasized that there are only formal requirements for invoking section 33 and that after the expiry of the sunset period, the legitimacy of its use falls to the judgment of the electorate.^[11] Moreover, the Court noted that section 33 is “the fruit of a federal-provincial compromise (with the exception of Quebec),” referring to the patriation of the Constitution in 1982.^[12] Citing Jacques Gosselin, the Court characterized section 33 as a “counterweight” to the broadened scope of judicial review made available by the adoption of the Charter.^[13] And finally, the Court noted that despite ongoing debate about whether section 33 has substantive conditions, there is an expectation that the legislature will engage in “strong democratic deliberation” before invoking it.^[14] This democratic deliberation is part of the legislature’s role in defending and promoting rights and freedoms.^[15] 

Understanding section 33 as a historical compromise is not disconnected from how we understand its legal effect. Proponents who negotiated for the notwithstanding clause were concerned that the Charter would expand the power of the judiciary to the detriment of provincial autonomy. With that in mind, the legal effect of section 33 is obviously to limit the power of the courts. But in what way? This question has never been definitively answered, but different understandings have been put forward over the years by a variety of courts and commentators.

In World Sikh Organization, the QCA waded into this longstanding debate when it concluded that the notwithstanding clause removes the power of courts to review legislation for potential Charter-infringement. This, however, is only one interpretation of section 33’s legal effect. Another interpretation is that the notwithstanding clause overrides Charter rights themselves, taking away a “head of power,” so to speak, of the courts. A third interpretation is that the notwithstanding clause only overrides the remedy that courts typically grant upon a finding of Charter-infringement, i.e. striking the legislation down.^[16] 

To critically assess the Court’s judgment in World Sikh Organization, these interpretations will be considered in turn, with attention paid to how and if the Court of Appeal considered them, how they have been viewed within Canadian legal academia, and how they have been treated in the jurisprudence.

Interpretation 1: Overriding (Some) Charter Rights

Peter Hogg employs the language of overriding rights to describe the legal effect of section 33. According to Hogg, section 33 removes a statute “from the reach of the Charter provisions referred to in the declaration” without the enacting body needing to justify it under section 1.^[17] 

This view is mirrored by the Supreme Court in the Reference re Secession of Quebec.^[18] In a single mention of the notwithstanding clause in that case, the Supreme Court articulated its effect as giving to Parliament and provincial legislatures the authority to make laws under their respective heads of power “in derogation of” sections 2 and 7 to 15 of the Charter.^[19] Similar language was employed in Ontario (Attorney General) v G, where the majority characterized the legal effect as temporarily exempting a statute from “the application of rights and freedoms guaranteed by ss. 2 and 7 to 15.”^[20] 

At first, these two cases might seem to approach the effect of section 33 from different angles. According to the Secession Reference, something happens to the rights themselves, i.e. a derogation. According to Ontario v G, by contrast, something happens to the statute, i.e. an exemption. However, both approaches fall within the “rights override” interpretation because the legal effect of section 33 impacts the relationship between the infringing statute and the rights and freedoms subject to section 33. The relationship, whether because the statute is “exempt” or the rights are “overridden,” is severed by section 33. Either way, where the rights and freedoms would normally render a statute unenforceable (notwithstanding section 1), they are now unable to do so because of the invocation of section 33.

In World Sikh Organization, the Court referred to section 33 as an “override authority,” an “override provision,” and an “override power.”^[21] However, what most signals the Court’s employment of this first interpretation is when it finds that section 33 confers onto legislatures the power to “temporarily override the application” of sections 2 and 7 to 15 of the Charter.^[22] This means that while the normal operation of sections 2 and 7 to 15 would “rein in” Bill 21, the rights and freedoms lack a link to Bill 21 that would allow them to do so, with section 33 operating as the means of severing that link.

Interpretation 2: Precluding Substantive Review

In Ford v Quebec (Attorney General), the Supreme Court held that, per the provisions of section 33, legislatures only need to fulfill requirements of form in order to validly invoke the notwithstanding clause.^[23] This holding leads to a second interpretation of section 33’s legal effect: it precludes judicial review beyond assessing requirements of form. Under this interpretation, courts are not completely removed from the equation any time section 33 is invoked. Rather, judicial review is limited to ensuring that legislatures include “an express declaration” that the statute in question “shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Charter.”^[24] 

Notably, the formal requirements set out in Ford do not require a legislature to specify which Charter provisions it is overriding. The Supreme Court determined that to do so would require a legislature to connect the statute to the relevant provisions, and that it fell beyond the judicial review of form for courts to examine whether there is an apparent link between the statute and the provisions declared to be overridden.^[25] In theory, if a legislature left a provision out of its declaration, and a court found that legislation to infringe that excluded provision, the legislature could either decide to provide section 1 justification or amend the declaration to include that provision in its invocation of section 33. In this hypothetical scenario, the court did not conduct this kind of review before the provision was included in the declaration, so it would not offend the limits of judicial review set out in Ford. This same line of reasoning led the Court in Ford to find that a sweeping declaration was a valid use of section 33, because legislatures do not need to demonstrate a link between the statute and the provisions included in its declaration.^[26] 

In World Sikh Organization, the QCA maintained the view from Ford that the legal effect of section 33 is to preclude substantive judicial review, rendering courts effectively silent vis-à-vis some potential Charter violations.^[27] Consequently, the Court declined to rule on whether Bill 21 infringed sections 2 or 7 to 15 of the Charter.

Interpretation 3: Barring the Remedy

Grégoire Webber counters the rights-overriding and review-overriding interpretations of section 33 by making an observation about the provision’s wording: the provision makes no use of the words “override” or “derogate.”^[28] According to Webber, the legal effect of section 33 is clearly expressed in the language of its provisions; that is, the legal effect of section 33 is to bar the remedy traditionally granted by courts when they find that a piece of legislation violates the Charter without justification, i.e. declaring it inoperative under section 52(1).^[29] 

Webber is correct on this point, in my view. The key phrases in section 33(1) and (2) are the following: “the Act or a provision thereof shall operate notwithstanding” and “in effect shall have such operation as it would have.”^[30] In World Sikh Organization, the Court found that section 33 “implicitly” shields legislation from the application of 52(1).^[31] But it is only implicit insofar as it does not expressly name section 52(1). In wording, however, it is perfectly clear.

Under this interpretation, courts are not completely barred from conducting judicial review. As Webber observes, section 33 does not explicitly mention judicial review, nor does it use language to suggest that legislation cannot be reviewed for Charter infringement.^[32] Rather, it remains possible for a court to conduct judicial review so long as it doesn’t interfere with the legal effect of the notwithstanding clause. Specifically, judicial review would only offend a valid use of section 33 if it led the court to declare the legislation inoperative. The Ford ruling remains unchallenged if this view is adopted because it pertains to judicial review of whether section 33 has been properly invoked (which must focus on form only), not judicial review focused on potential Charter violations (which would necessarily involve substantive considerations).

In sum, nothing in the wording of section 33 precludes a court from finding that a piece of legislation infringes the Charter. It does, however, preclude a court from granting the remedy of inoperability. The legal effect stays intact. Therefore, this interpretation does not, as the QCA feared, abrogate section 33.

Conclusion

Webber’s argument boils down to a single point: this interpretation is correct because it is what the text of the provision says.

As emphasized in Ford, the central question is what section 33 requires. And section 33 simply does not require a court to refrain from substantive judicial review. World Sikh Organization notes the importance of section 33 acting as a counterweight to the balance struck between legislatures that make and pass laws, and courts who review the constitutionality of those laws.^[33] While section 33 works to tip the balance more in favour of legislative freedom, substantive judicial review of section 33 would not offend this balance unless a court attempted to strike down a shielded statute under section 52(1).

Under Webber’s interpretation, it is open for a court to review the constitutionality of Bill 21, and even to grant a remedy under section 24(1), that is, declaratory relief. In his view, this practice would make the relationship between the court, the legislature, and the public more robust in the sense that, through declaratory relief, the public would be better informed about the nature of a law, and with this knowledge can better perform the democratic function of assessing the government’s conduct at the ballot box.^[34]

Hypothetically, if a court were to find a statute that invokes section 33 to be Charter-infringing, and out of public pressure, a legislature repealed the act, this would not offend the legal effect of section 33, because it would not be invalidated by the force of the courts but would rather be, as the Court of Appeal recognizes, a decision of the legislature that is left in the hands of the people.^[35] 

As this case moves to a final appeal, the Supreme Court has the opportunity not only to rule on the legal effect of section 33, but to revisit Ford and whether formal requirements are enough of a check on a legislature’s use of the notwithstanding clause. It remains to be seen if the Court will take all of these opportunities, or if it will leave some issues to be resolved another day.

***

Nicole Ibalio is a 2L law student at the University of Alberta and worked as a Centre for Constitutional Studies Summer Student in 2025

[1] An Act respecting the laicity of the State, CQLR c L-0.3, s 6 [Bill 21].

[2] Ibid, s 8.

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] Steve Rukavina, “New research shows Bill 21 having ‘devastating’ impact on religious minorities in Quebec” (4 August 2022), online: CBC News <https://www.cbc.ca/news/canada/montreal/bill-21-impact-religious-minorities-survey-1.6541241> [https://perma.cc/YNQ4-P94V.].

[5] Charter, supra note 3, s 33.

[6] Jacob Serebrin, “Quebec Appeal Court Bill 21 ruling fuels debate on notwithstanding clause” (2 March 2024), online: CBC News <https://www.cbc.ca/news/canada/montreal/quebec-bill-21-notwithstanding-clause-1.7132346>.

[7] World Sikh Organization of Canada v Attorney General of Quebec, 2024 QCCA 254 at para 224 [World Sikh Organization].

[8] Ibid at para 225.

[9] Ibid at para 226.

[10] Ibid.

[11] Ibid, citing Working Families Coalition (Canada) Inc v Ontario (Attorney General), 2023 ONCA 139.

[12] World Sikh Organization, supra note 7 at para 228.

[13] Ibid, citing Jacques Gosselin, La légitimité du contrôle judiciare sous le regime de la Charte (Cowansville: Yvon Blais, 1991) at 251.

[14] World Sikh Organization, supra note 7 at para 232, citing Noura Karazivan and Jean-François Gaudreault-DesBiens, “Rights Trivialization, Constitutional Legitimacy Deficit, and Derogation Clauses: The Example of Quebec’s Laïcity Act” (2020) 99:2 SCLR 487 at 500-501.

[15] World Sikh Organization, supra note 7 at paras 233-234, citing Dominique Leydet, “Droits fondamentaux et démocratie représentative : prendre au sérieux le rôle des Parlements” in J Michel Doyon, ed, Droit, justice et démocratie : colloque du lieutenant-gouverneur du Québec (Montreal: Yvon Blais, 2023) 73 at 74-75.

[16] See Grégoire Webber, “Notwithstanding Rights, Review, or Remedy? On the Notwithstanding Clause and the Operation of Legislation” (2021) 71:4 TULJ 510.

[17] Peter Hogg, Constitutional Law of Canada, 5th ed (Scarborough, ON: Thomson Carswell, 2007) vol 2 at 39-2.

[18] Reference re Secession of Quebec, [1998] 2 SCR 217 [Secession Reference].

[19] Ibid at 247.

[20] Ontario (Attorney General) v G, 2020 SCC 38 at para 137. See also Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68; Toronto (City) v Ontario (Attorney General), 2021 SCC 34.

[21] World Sikh Organization, supra note 7 at paras 222, 226, and 248.

[22] Ibid at para 271.

[23] Ford v Quebec (Attorney General), [1988] 2 SCR 712 at 741 [Ford].

[24] Ibid at 740.

[25] Ibid at 740-741

[26] Ibid at 742-743.

[27] World Sikh Organization, supra note 7 at para 283.

[28] Webber, supra note 16 at 515-516.

[29] Ibid at 523; Charter, supra note 3, s 52(1).

[30] Ibid, s 33.

[31] World Sikh Organization, supra note 7 at para 348.

[32] Webber, supra note 16 at 518.

[33] World Sikh Organization, supra note 7 at para 228.

[34] Robert Leckey & Eric Mendelsohn, “The Notwithstanding Clause: Legislatures, Courts, and the Electorate” (2022) 72:2 UTLJ 189 at 199.

[35] World Sikh Organization, supra note 7 at para 226.