As Canada’s highest court considers the constitutional future of Quebec’s Bill 21, Professor Grégoire Webber’s rethinking of the notwithstanding clause is now central to one of the most consequential Charter cases.
Background
For an unprecedented four days in late March, the Supreme Court heard arguments on Bill 21, passed in 2019. The law, which restricts the wearing of religious symbols by Quebec teachers, police officers, and other public officials, invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms. This clause allows a law to continue operating even though it might violate some rights guaranteed by the Charter.
At the heart of the legal arguments the Supreme Court heard were fundamental questions: What does the notwithstanding clause mean? What power does it give to legislatures? And what, if anything, is left of rights and of the role of a court when it is invoked?
During the hearing, one of the justices remarked that many of the legal arguments before the Court were inspired by what he described as a “professorial debate” — a reference to an academic legal argument about how the notwithstanding clause should be understood.
Where the debate began
The debate began in 2019 as Bill 21 was before the Quebec National Assembly. François Legault, Quebec Premier at the time, had suggested that invoking the notwithstanding clause would allow the legislature to “avoid lengthy judicial battles.” This reflected a widely held belief: that the notwithstanding clause suspends rights and displaces judicial review, giving any legislature free reign to violate rights. On that understanding, rights and courts are silenced.
In an article published that year, “The faulty received wisdom around the notwithstanding clause,” Webber, together with Robert Leckey, then dean at the McGill University Faculty of Law, and Montreal lawyer Eric Mendelsohn, argued against much of the “received wisdom” surrounding the notwithstanding clause, including Premier Legault’s supposition that by invoking it, the legislature could “avoid lengthy judicial battles.”
A different interpretation
The alternative view, first articulated in 2019, rejects the Quebec government’s view as wrong in law: the notwithstanding clause does not suspend rights and it does not suspend the judicial responsibility to determine whether those rights have been infringed. Rather, the clause does something more specific and limited. It prevents courts from granting only one particular remedy: declaring that a law has no force or effect.
Much has followed that 2019 essay. Legal academics, practising lawyers, and political scientists have argued against the essay’s claims, and others have come to its defence. Webber — Canada Research Chair in Public Law and Philosophy of Law (2014-2024) — has developed the argument, in both English and French, across four further publications since the first publication in 2019, and in speaking venues before academic, government, professional, and public forums.
Adoption by the courts
Webber’s research on the notwithstanding clause has significantly contributed to knowledge and understanding about people, societies, and the world, yielding demonstrable impact within his field of research and beyond the social sciences and humanities research community.
His interpretation of the clause was adopted first by the Court of King’s Bench and then again by a majority of 4:1 of the Saskatchewan Court of Appeal in a case brought by UR Pride Centre for Sexuality and Gender Diversity against the Government of Saskatchewan for a law on gender identity in schools. As summarized by the Court of Appeal majority: “UR Pride adopts the view taken by Grégoire Webber,” Saskatchewan (Minister of Education) v UR Pride Centre for Sexuality and Gender Diversity, 2025 SKCA 74, para. 93).
By the time Bill 21 reached the Supreme Court last month, the ideas first articulated seven years ago had entered the mainstream of legal thought. The 2019 essay and the professorial debate that followed were found in the written submissions filed before the Court and were repeatedly cited in oral argument.
Why this matters
If the Supreme Court adopts the understanding of the notwithstanding clause defended by Webber and others, a court could declare whether Bill 21 violates Charter-protected freedoms, including freedom of religion, freedom of expression, and the right to equality. The legislature of Québec would need to accept the burden of maintaining Bill 21 in the face of an acknowledged rights infringement.
This has practical consequences, for any government would be required to recognize the rights implications of their laws, court decisions could inform public debate, and citizens would be better positioned to assess the choices of their governments.
The debate around the notwithstanding clause illustrates the public significance of legal scholarship. If the Supreme Court adopts the reasoning defended by Webber, it will not simply cite an academic article. It will give effect to a particular understanding of the Constitution — one that structures the relationship between rights, courts, and legislatures.
That understanding will endure beyond the immediate appeal. It will inform how future laws are enacted, challenged, and defended. It will shape how rights are discussed in courts, in legislatures, and in public life for years to come.