Will the Supreme Court attack the Notwithstanding Clause? It's quite likely says this expert...

Bruce Pardy tells me the Supreme Court can and likely will make stuff up.

The Supreme Court was hearing arguments all about Quebec’s Bill 21 last week, but really they were talking about the Notwithstanding Clause.

The Carney Liberals intervened in this challenge to Quebec’s law on secularism to attack the Charter of Rights. In their arguments, the Liberal government called for the Supreme Court to put restrictions on Section 33 of the Charter, AKA the Notwithstanding Clause.

To do this politically, it would take seven provinces comprising more than 50% of the population to agree to the changes. If you go to the Supreme Court, well in this case, you only need four of seven judges to agree.

Bruce Pardy is a professor of law at Queen’s University. He’s written extensively for National Post and elsewhere and while he’s no fan of the Notwithstanding Clause, he also doesn’t think it should be scrapped.

He put it down to deciding if we want to be ruled by a legislature that is supreme or a court that is supreme in making final decisions.

Enjoy the coversation.

From the official show notes.

If you think the Supreme Court will be reluctant to rewrite the Constitution, as Ottawa wants it to by handcuffing Section 33, then you haven’t been paying attention, as Bruce Pardy tells Brian. It doesn’t matter that the notwithstanding clause explicitly gives parliaments the right to override certain court rulings, or that it was key to the Charter of Rights being passed in the first place, says Pardy, a constitutional scholar at Queen’s University. The rule of Canadian constitutional decisions is that there are no rules. For decades, justices have simply invented interpretations and dreamt up Charter “values” that align with their left-wing politics. And our constitution is conveniently designed to keep that happening — forever. (Recorded March 27, 2026)