When Alberta Premier Danielle Smith and her governing United Conservative Party pushed through the reading and passing of Bill 2, the Back to School Act which preemptively invoked the notwithstanding clause, limited debate time, and less effort on behalf of the government to engage in and respond to said debate, it reignited an interest in the topic once again on the purpose, and constitutionality, of its use at all. Many want a piece of this debate (including yours truly) and I’d like to first explain one of the differences between other recent debates and this one; or, why it’s fine that the non-experts are piping up.
In some of the recent and ongoing debates, where science is under attack by people who know little more than nothing about the topic, there is a key difference: science relies on verifiable evidence; research, testing, and the ability to reproduce results. There’s a reason the scientific method doesn’t end at a hypothesis— one must test that hypothesis and prove whether it’s a reasonable or unreasonable question or opinion to entertain. If you’re asserting a conclusion without testing and retesting to demonstrate the results are reproduceable, you’re not doing science. I’ll also add that anyone can question those results, but they do so by engaging in the full process of the scientific method (and wouldn’t likely brag about questioning it until after they’ve proven their hypothesis was worthy of declaring).
Legislative law is different; it is not immutable. Legal and constitutional experts can, and do, legitimately (and publicly) disagree because law can be changed through the exercise of vigorous debate. Laws are man-made and they are reflective of the times in which they are made, which may not necessarily be reflective of the times in which they are relied upon. A well-known example would be allowing persons of the same sex to legally enter into a binding contract called “marriage”. The laws against it were seen as unjust for years before a majority of those in society to which the law did not apply agreed, which then offered elected officials the political will to change the law. It’s a reality that exists in legislative law but not in science.
With that being said, it’s not as if there are no rules to engaging in the debate. The first rule is understanding what is being, and worthy of being, debated. Luckily, those who know tend to write it down.
Newly entering the awareness of the greater public square is Geoffrey Sigalet, an assistant professor at UBC Okanagan in the Faculty of Arts and Social Sciences. He received a BA from the University of Alberta, a Masters from McGill, and a PhD from Princeton. A summary of his research includes: Canadian Charter Rights and Public Policy, Federalism, Constitutional Theory, Theories of Constitutional Interpretation, Judicial Politics, Comparative Constitutional Law, and Democratic Theory, and he teaches in the areas of Canadian Charter Politics, Federalism, Comparative Constitutional Law, Democratic Theory.
I have no problem accepting that he knows the subject matter.
In 2024, the Osgood Hall Law Journal published Dr. Sigalet’s short opinion (under 40 pages) entitled “Legislated Rights as Trumps: Why the Notwithstanding Clause Overrides Judicial Review” in which he argues not only the legal function of s.33, but in defence of disallowing judicial review if the notwithstanding clause is invoked. In April of that year, the English Montreal School Board filed leave to appeal Quebec’s Bill 21, an act to respect the laicity of the state (religious symbols ban).
Dr. Sigalet argues that the judiciary is restricted from considering the question of whether a law directly impacts Charter rights when the notwithstanding clause is invoked because invoking the clause adheres to parliamentary supremacy where the reasoning is then “left to the political process.”
Legislation properly invoking the notwithstanding clause thereby remains open to the judgement of citizens and legislators as to whether it complies with selected rights, but it prohibits courts from making such judgements.
This deference to legislators— those who thought it appropriate to invoke the clause in the first place— reminded me of the argument put forth in the National Post op-ed which added “primary responsibility for the preservation of peace, order, and good government resides in Parliament and the provincial legislatures,” which I argued against last week.
Dr. Sigalet goes on to state that a reliance on legislation properly invoking the notwithstanding clause supports the decision of the Quebec Superior Court’s refusal to invalidate Bill 21. While it is true that Justice Blanchard deferred to the legislature’s paramountcy, he was not silent on the question of whether the Bill violated ostensibly protected rights.
When the case passed through the Superior Court of Quebec as Hak v. Procureur Général du Québec in 2021, Justice Marc-André Blanchard wrote that it was “incontestable” that Bill 21 violated the Canadian and Quebec Charters; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the Universal Declaration of Human Rights. (Emphasis mine)
Regardless, the judge concluded that the bill’s invocation of the clause was “legally unassailable.” He cited the 1988 case Ford v. Quebec (Attorney General), in which the Supreme Court of Canada established that legislatures are not required to justify their use of the notwithstanding clause; instead it suffices for a legislature to formally express that it will invoke the clause and declare which portions of the Charter it will override.
Angela Lu, Columbia Law Review, September 5, 2024
However, Dr. Sigalet goes on to state that since it is the voters who should hold legislators to account, barring the courts from offering an opinion would somehow allow for more debate on the political necessity of using the notwithstanding clause.
By allowing legislatures to enact propositions of laws that express disagreements with courts about Charter rights, the notwithstanding clause enables citizens to hold legislators and judges accountable for respecting such rights. It allows for political arguments about the legal scope and nature of Charter rights outside of courtrooms. With this standard in hand, it may be possible to have more reasonable disagreements about whether laws like Loi (Bill) 21 are politically legitimate.
This is where I will vehemently disagree.
Canadians deserve better
I have no problem admitting that I am absolutely biased against political spin taking a greater role in making sense of our rights. As it stands today, November 3, 2025, the conservative brain trusts and their parroting minions are claiming that the Supreme Court’s denunciation of mandatory minimums is “soft on crime” because they acknowledged (as they have in the past) that mandatory minimums are not constitutional.
Instead of thinking of this as the “guilty person’s ‘get out of jail free’ card”, think of it as “this bad law could jail your son because a judge isn’t allowed to acknowledge his case is different” — because that’s what it is.
Conservatives today are claiming that everyone but them want exceptions for bad guys with exploitative photos and videos of five year-olds all over their computers. They want people to think that’s what the SCC reasoning was about. So long as no one asks questions, they’re golden. However, the legitimately unfortunate scenario the court was contemplating is not even close to that.
Picture this: your son, nephew, neighbour’s kid is in grade 12 this year. He’s been going steady with a girl in his class since spring of last year. His birthday is in January and he’s super excited about turning 18. His girlfriend doesn’t turn 18 until June. On his birthday, she decides to send him some photos of herself, which he didn’t ask for, but keeps. In March, a nasty bugger in his class overhears him saying that his girlfriend sent him photos and calls in an anonymous tip about him having photos of underage girls on his phone. The police get a warrant and find the photos.
Should a judge be forced to send that young man to prison for a year or should a judge have the ability to acknowledge that this case is entirely different than what conservative politicians are saying it is?
Because right now, conservatives are saying that kid is the same as the guy with half a terabyte of explicit photos of five year-olds and it should be pretty obvious that they are not the same.
So, why should they both be subjected to a mandatory minimum sentence?
The obvious answer is that they shouldn’t be, but this is precisely why judges don’t like mandatory minimum sentences; it takes away their power to adjudicate responsibly based on entirely different circumstances. The problem is that both of the above examples are categorized as child pornography even though there is an obvious difference between them.
The review, then, gives parliament an opportunity to correct the law. Consider the judiciary a relevant stakeholder who is providing feedback. Talk to your sons if you’d like more relevant stakeholder feedback. The people who have staked out a position of ignorance, unfortunately, are those who both are legislators — Alberta Premier Danielle Smith — and those who wish to become legislators so they can use the notwithstanding clause against people who don’t deserve it (Pierre Poilievre).
I’m taking Dr. Sigalet’s argument charitably. In a world where legislators could be trusted to honestly consider the many factors, inputs, and outcomes, of incredibly important issues, I might even agree with him. I love debate, and reason, and I love the idea of getting decision-makers closer to something that works better for everyone. I no longer see that as possible in the current iteration of some provincial governments, let alone Canada’s Official Opposition.
If anything, bad actors who also happen to be elected officials are proving daily that not only is “reasoned debate” impossible, but by prohibiting those who are not bound by political ideology from speaking, yet have the capacity and authority to provide reasoned insight, we would be driven even further away from a society that protects all of us from those who cannot think past their knee jerk reactions.
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Excellent.
And with respect to scientific rigour, I will add the one essential element not mentioned: peer review. It’s not enough to articulate the hypothesis, design the experiment, run the tests and evaluate the results. Only by subjecting the entire work to review by other experts should the new knowledge be deemed valid.
It seems to me the closest thing the legislative process has to this is judicial review.
S33 is to provide legislatures the ultimate power to establish laws for the good of the people they govern. I would argue using closure on the debate of a bill to use it to limit or erase the rights of citizens does not allow the legislature to make the executive proposing such a law fully responsible to the people who elected the legislators.