While the notwithstanding clause was once aptly described as a "sleeping giant," things were always more complicated in Quebec. Having seen the Constitution partiated without its consent in 1982, the Quebec government promptly used section 33 as a tool of protest, applying it to all existing provincial legislation to blunt the force of the new Charter. More than a dozen invocations followed in the ensuing decades, but the public response was generally muted, if not silent. Then, in 2019, the Legault government passed Bill 21, a law that prohibits the wearing of visible religious symbols in certain public sectors jobs. The backlash against Bill 21 was swift, and the question was posed: where is the line between legitimate protection of a province's distinct culture, and the othering of its minority populations?

With the controversy over Bill 21 still raging, and with a Supreme Court hearing coming up, we talked to Professor Jean Leclair (University of Montreal) and Cee Strauss (LEAF) about the past, present, and future of Quebec's unique relationship with section 33, and about how litigants in the Bill 21 case are trying to get around the seemingly insurmountable obstacle of the notwithstanding clause.

After ignoring the notwithstanding clause for nearly forty years, the Ontario government has recently changed tack, starting with its (successful) attempt to restructure Toronto City Council during a municipal election in 2018. Although a Court of Appeal decision rendered the invocation of section 33 unnecessary in that instance, the Ford government's readiness to hit the notwithstanding button was the beginning of a (now) clear attitudinal shift. Subsequent years brought two actual invocations -- one of which was withdrawn after intense public backlash -- and, more recently, murmurings about the possibility of a fresh invocation to shore up governmental powers to clear homeless encampments. For a survey of these developments and the constitutional questions they raise, we talked to two Ontario-based lawyers: Marion Sandilands (Conway Litigation) and Kris Kinsinger (SV Law).

In this first episode, we talk to Professor Eric Adams (University of Alberta) about the history of, thinking behind, and debates surrounding the notwithstanding clause. Professor Adams provides an overview of how the clause works, walks us through the various limits that are baked into it, and tells us why Western provincial premiers on different sides of the political aisle argued for its inclusion in the Charter. He also talks about why we're seeing an uptick in recourse to the clause, and whether this is connected to global political trends like the rise of populism.