Federal Government Doesn’t Need to Use the Notwithstanding Clause

This year marks the 42^nd anniversary of the Canadian Charter of Rights and Freedoms being signed. The Charter forms an enormous part of our Constitution, and carries with it the fundamental guarantees of our freedoms, including the freedom of association, expression, & religion, and of our rights, including equality, mobility, & legal rights that form much of the backbone of our judicial system. The Charter is as fundamental to the Canadian way of life as the maple leaf, so much so that, in 2013, Statistics Canada collected data from Canadians through the General Social Survey (GSS) on what national symbols were important to our identity. The Charter topped the list with a 93 percent approval from Canadians, beating the national flag itself.

One part of the Charter, however, has always been controversial: Section 33, more commonly known as the notwithstanding clause. What Section 33 of the Charter does is allow the temporary suspension of other Charter rights for the provision of a law that would otherwise be deemed to be in violation of the Charter, specifically Sections 2 (regarding fundamental freedoms), 7 to 14 (the protection of Canadians’ legal rights), and 15 (regarding equality rights that prevent certain forms of discrimination from the Government of Canada).

Historically, the notwithstanding clause has been used rather infrequently by the majority of provinces. While Section 33 charter rights have been invoked many times in Quebec, it was previously considered an act of political suicide elsewhere in the country. In fact, there were only two provinces aside from Quebec who passed legislation using the notwithstanding clause prior to 2005: Saskatchewan using it in 1985 to order government workers back to work, and the Alberta government in 2000 using it to affirm their homophobic belief that marriage was strictly between a man and a woman (an issue the Supreme Court of Canada found to be ultra vires(invalid) because marriage law is federal authority.)

For decades, it felt like there has been no real appetite to use Section 33 to overrule portions of the Charter outside of it’s use in Quebec, where it’s been used primarily to affirm French-language laws. But recently, Premiers have used the notwithstanding clause with more frequency, and in doing so, risk undermining the very Charter itself.

In 2021, Ontario Premier Doug Ford pushed forward with Bill 307, designed to limit pre-election spending period for third party advertisers from six months to one year, using the notwithstanding clause because previous attempts to do so were ruled unconstitutional. Bill C-307 itself would eventually be ruled unconstitutional because it impacted areas where the notwithstanding clause could not be used to override the Charter. His government also used the clause to attempt to quash teacher strikes through Bill 28, prompting a massive backlash from teachers’ unions. Most recently, the Saskatchewan government used the clause pre-emptively on their so called “Parents' Bill of Rights” bill aimed at trans youth, hoping the bill would not stand up to a court challenge. Having said that, it may ultimately end up in the Supreme Court of Canada, as a Superior Court decision has allowed an LGBTQ2+ rights organization to challenge the law despite the Section 33 invocation.

Section 33 remains an infrequently used tool because we are a nation of laws, checks, and balances, and most of us understand that legislation must hold up to an appropriate legal challenge. This is precisely why it has never been used at the Federal level. While the Conservative leader’s office has implied that a Conservative government would make use of it, no other party has ever floated it’s use at the Federal level. In fact, in a poll conducted by Angus Reid last year, a majority polled, 55 percent, would rather see Section 33 abolished.

It's up to us, as legislators, to pass legislation, and it is up to the courts to make the determination that those same laws are Constitutional. Bypassing court challenges through the notwithstanding clause creates a dangerous precedent.