When governments override rights: what Canada’s Bill 21 case means for democracies everywhere

One of the most consequential constitutional cases in recent Canadian history was heard last month, raising questions that extend far beyond Canada’s borders. At the center of the case is Quebec’s controversial secularism law, known as Bill 21. But the deeper issue is far more profound: what happens when governments can override fundamental rights before courts even have the opportunity to review them?

Bill 21 prohibits many public-sector employees—including teachers, police officers, prosecutors and judges—from wearing visible religious symbols while performing their duties. On its face, the law appears neutral, applying equally to all religious expressions—hijabs, Sikh turbans, Jewish kippahs and crosses alike. But neutrality in wording does not always translate into fairness in practice.

For many, the impact is deeply unequal. Muslim women who wear the hijab, Sikh men who wear the turban, and observant Jews who wear the kippah are effectively forced to choose between their professions and their faith. What appears to be a universal rule becomes, in reality, a barrier that excludes certain communities from full participation in public life.

What makes this case especially significant is not only the substance of the law, but how it has been shielded from constitutional scrutiny. The government of Quebec invoked a provision in Canada’s Constitution known as the “notwithstanding clause,” which allows legislatures to override certain fundamental rights—including freedom of religion and equality—for renewable five-year periods.

Crucially, this clause was used preemptively. Instead of responding to a court ruling, the government acted in advance, insulating the law from judicial review before courts could determine whether it violates basic rights.

This raises a troubling question for any democracy: what happens when rights can be set aside as a matter of political strategy?

When Canada adopted its Charter of Rights and Freedoms in 1982, it did so with the intention of protecting individuals—especially minorities—from the excesses of majority rule. The notwithstanding clause was included as a political compromise, intended to be used rarely and with caution.

For many years, it largely was.

Today, that restraint appears to be eroding. Governments are increasingly willing to invoke—or threaten to invoke—the clause, not as a last resort, but as a first line of defense for controversial policies. What was once exceptional is becoming normalized.

And if this normalization continues, the implications could extend well beyond this case. Governments may be tempted to use similar powers to override other rights—affecting not just minority communities, but broader segments of society.

At the heart of the debate is the meaning of state neutrality. Supporters of Bill 21 argue that visible religious symbols undermine the neutrality of public institutions. But this understanding is contested. A teacher wearing a hijab or a Sikh wearing a turban does not transform a public institution into a religious one. These individuals are not the state—they are citizens participating in public life.

To exclude them in the name of neutrality risks confusing diversity with bias, and identity with influence.

There is also a historical dimension that cannot be ignored. Efforts to regulate religious expression—particularly among minority communities—have often been framed in the language of progress and liberation. Yet such efforts have frequently functioned as tools of control, defining which identities are acceptable in public and which are not.

Bill 21 echoes some of these tensions.

It also sits uneasily alongside the way many Western governments speak about freedom abroad. Restrictions on women’s autonomy in countries like Iran or Afghanistan are rightly condemned. But those criticisms lose credibility when governments at home impose their own restrictions—dictating what women can or cannot wear, even if in the opposite direction.

Freedom cannot be selective.

The stakes of this case go far beyond Quebec. They speak to a fundamental question facing democracies around the world: are constitutional rights enduring protections, or are they contingent on political will?

If rights can be overridden before they are even tested in court, they risk becoming conditional—subject to shifting political priorities rather than grounded in stable legal principles.

The Supreme Court of Canada’s decision will not eliminate this tension. The notwithstanding clause ensures that legislatures retain a degree of authority. But the Court can still clarify the principles at stake and emphasize the importance of restraint.

Ultimately, constitutional systems depend not only on legal rules, but on political culture. Rights endure when governments respect their limits, even when doing so is inconvenient.

When they do not, the burden of protecting those rights shifts—from courts to politics, from principle to power.

That shift should concern us all.

Because once rights become negotiable, they cease to function as rights in any meaningful sense.

([his article was originally published on Law360 Canada (www.law360.ca), part of LexisNexis Canada Inc."When Governments Override Rights: What Canada’s Bill 21 Case Means for Democracies Everywhere")

[Faisal Kutty is a Toronto-based lawyer and regular contributor to The Toronto Star. His articles also appear in Newsweek, Aljazeera, Zeteo, and Middle East Eye. You can follow him on X @faisalkutty]