Is the Notwithstanding Clause an Ouster Clause?

Abstract

Thirty-seven years after its decision in Ford, the Supreme Court of Canada granted leave to appeal in 2025 against the Quebec Court of Appeal’s ruling in the Work Sikh Organization case. This appeal is poised to be the most significant development in the Court’s jurisprudence on section 33 since the 1988 Ford decision. The case, now known as English Montreal School Board, raises important issues and invites the Court to reconsider its stance in Ford. This article takes Ford as a starting point but addresses a question neither raised nor settled in Ford — whether the notwithstanding clause functions as an ouster clause. The Quebec Court of Appeal answered this question in the affirmative, but I argue that the Court was wrong. The notwithstanding clause does not oust the jurisdiction of a court to substantively review an impugned law or provision for Charter compatibility. This point is separate and distinct from the decision of the Supreme Court in Ford that the legislature’s use of section 33 cannot be reviewed substantively. Interpreting the notwithstanding clause as an ouster clause needlessly outlies section 33 by departing from standard principles of Charter interpretation, ignoring clear constitutional wording, and undermining the Charter’s purpose of protecting rights.