The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, allows governments to pass legislation that violates certain portions of the Charter for up to five years.

Using the clause means the legislation can not be overturned, but Marion Sandilands, a partner at Conway Litigation said how a court can rule alongside the notwithstanding clause remains an open question.

“Even if it can't strike it down because of the notwithstanding clause, the court can declare whether or not it violates Charter rights,” she said.

“So in this case, the court might be asking itself, does this violate the right to collective bargaining, for example?”

There are two high-profile recent cases where the notwithstanding clause has been invoked and challenged in court: In Saskatchewan and Quebec.

In 2023, Premier Scott Moe's Saskatchewan Party government brought in a law preventing children under 16 from changing their names or pronouns at school without parental consent.

And in 2019, the Quebec government used the notwithstanding clause to pass its secularism law.

Both cases saw legal challenges and were appealed by the provincial governments with contrasting results.

In Saskatchewan, the court of appeal said courts can make declarations about constitutionality, even if a law can’t be struck down, but that wasn’t the case in the Court of Appeal of Quebec.

“The courts of appeal in the different provinces have come to different conclusions about how much courts can intervene,” said Vibert Jack, litigation director with the BC Civil Liberties Association.

Both the Quebec and Saskatchewan cases are being appealed to the Supreme Court. It hasn’t yet agreed to hear the Saskatchewan case yet.

Jack said the cases raise a philosophical question about whether courts can review and make declarations about Charter rights being violated once the notwithstanding clause is invoked.

“The law will continue to operate, have legal effect, but beyond that, it's not totally clear what remedies the courts could provide,” Jack said.

Federal lawyers have argued the clause doesn’t shield laws from judicial scrutiny.

Sandilands said while it can’t be struck down, the court could rule on whether Alberta’s back-to-work legislation itself violates the right to freedom of association.

“That's at the very minimum of moral victory for the union. And it might also influence public opinion around the issue,” she said.

Jack agrees that symbolic recourse could be worthwhile.

“It's not meaningless, it puts the government on notice and it puts the electors on notice that there's a problem with this law that needs to be addressed.”

(http://www.autoadmit.com/thread.php?thread_id=5793581&forum_id=2.#49402353)