What is Necessary in Order To Eliminate Canada's Notwithstanding Clause
- matt58clark
- Sep 25
- 6 min read
By Matthew Clark
What is the Notwithstanding Clause in Canada's constitution?
Section 33 of the Charter of Rights and Freedoms is commonly referred to as the "Notwithstanding Clause." It's function is to prevent a court from invalidating a law that violates Charter provisions relating to fundamental freedoms (section 2) legal rights (section 7-14)or equality rights (section 15). Provincial or Federal governments can use section 33 when they want to pre-emptively shield a law from judicial invalidation on these specific grounds or when they want to revive a law that has already been invalidated by a court on these grounds. While an invocation of section 33 expires after 5 years (as per section 33(3)), there is no limit on the number of times that clause can be reused for a given law (section 33(4) ).
What these words mean in plain language is that any provincial or federal government in Canada can do an end run around the Canadian Constitution's Charter of Rights and Freedoms, for any law they choose, by invoking the Notwithstanding Clause for that law. Although the Clause only extends for 5 years it can be reused for the law in question in perpetuity! In short this means the Charter of Rights and Freedoms only exists at the pleasure of governments within Canada. This makes the Charter of Rights and Freedoms a misnomer. Canadians rights, and freedoms are privileges, easily removed by state whim! Indeed governments in Saskatchewan, Ontario, Quebec, Alberta, and Yukon, have used the Clause in the past, including the recent past.
Why would a nation with a proud history of recognizing individual rights, and fighting for those rights (WWI,WWII), adopt such a measure(s) in it's fundamental proclamation of national principles?
Back in 1980 and 1981 when then Prime Minister Pierre Trudeau sat down with the country's Provincial Premiers to repatriate the nation's constitution ( The British North American Act, or B.N.A. act) a political divide between the Prime Minister and most of the provincial premiers quickly became evident. Mr. Trudeau wanted to add a Charter of Rights to Canada's constitution. While not entirely opposed to the measure most premiers, especially from the western section of the nation, displayed profound suspicion of the Supreme Court of Canada. Of the courts nine members three always originate from the province of Ontario, with 3 other judges always coming from the province of Quebec. This meant/means 6 members of a 9 member body of the most powerful court in the land are from two central Canadian provinces!
As the nations political leaders gathered in Ottawa the premier of the Western province of Alberta, Peter Lougheed, regaled his peers with a tale on the consequences of the Supreme Courts biased structure. Oil rich Alberta had experienced an unconstitutional attack by the Canadian federal government upon her energy resources. Titled the National Energy Program (NEP) the federal government enacted a series of taxes and regulations which in effect gave it control of Alberta's energy sector. This was a clear violation of Canada's constitution (BNA act) which placed resources under the domain of the provinces. Premier Lougheed, a graduate of University of Alberta law as well as a Harvard graduate in Business Administration, made ready to do legal battle with the federal government of Canada. To his dismay and outrage the Alberta governments legal advisors strongly suggested he negotiate with the Canadian government. While Alberta had a seemingly air tight legal case, the Canadian government had the systemic advantage. Evidence from similar previous cases, the premier was informed, suggested the Supreme Court would violate the law so as to rule in favour of the federal position. Disgusted, Peter Lougheed, on behalf of the province, cut a deal. Egregiously the Trudeau administration, which held political power in Ottawa, then referred to the (forced) agreement as evidence they had acted constitutionally.
Fuelled by Lougheeds yarn the premiers, with the exception of Ontario's Bill Davis, and New Brunswicks Richard Hatfield, exhibited hostility to Mr. Trudeau's Charter of Rights and Freedoms, unless there was an opting out provision attached to the Charter. This was seen as a necessary break on the Supreme Court, which would be the ultimate enforcer of the Charter. On this occasion it was the federal government members who reluctantly acquisced. Mr. Trudeau wanted a Charter of Rights, even a weak one, in the constitution.
Since the enactment of the Charter (April 17, 1982) the Notwithstanding Clause has, until recently, been used sparingly by most provinces, and not at all by any federal government. Yet at the provincial level that circumstance is changing. Current Ontario Premier Doug Ford has applied the Charter once while threatning it's use on several occasions, all within the last 3 years. Premier Smith of Alberta is presently using the Clause on a Gender law, Saskatchewan political leader Moe on an education bill, while the Quebec provincial government invoked the Clause in 2019 over a religious law, and in 2021 on a language regulation.
As was to be expected distrust for the Supreme Court of Canada has, over time, caused the provinces to resort to the Notwithstanding Clause with ever greater frequency. In the case of the western provincial ruling bodies this distrust is almost self explanatory. On the other hand the skepticism of the Ontario and Quebec legislatures appears to be counter productive to their interests. Holding six of the nine member seats on the nations premier judicial body would seem to give cause to the central Canadian provinces to exhibit respect and confidence in the Supreme Court. Yet that is not the case. Why this state of affairs exists is difficult to ascertain. Since Ontario's government is conservative while Quebecs is left of center ideology is unlikely to be a factor.
Whatever the reason for the Central Provinces actions the result is it makes legal reform unlikely in contemporary Canada, at a time when legal reform is required. Alarmed by the increasing use of the Notwithstanding Clause the federal governing Liberals are contemplating a method to arrest this development. Lawyers working on behalf of the federal govenment will most probably try to limit the use of the Notwithstanding Clause by asking the Court to impose restrictions on the Clause use.
It does not take much imagination to realize that asking the Supreme Court to restrict the use of the Notwithstanding Clause puts the judicial body in a conflict of interest situation. Limiting The Clauses application will increase the Courts power and influence. This will quite accurately be seen by opponents of the measure as self serving and illegitimate on the Supreme Courts part, if they do indeed take the oppurtunity to restrict the Clause. If they rule the Clause cannot be limited than it will be even more difficult in the future to eliminate the Notwithstanding Clause. The immediate peril of a decision by the highest court in the land to limit the Clause's use is that legal considerations will be outweighed by political ones, especially in the western prairie provinces.
Canadians as a people are becoming increasingly unrestive, particularly in the field of politics. Separation sentiment, known as secession in the United States, is expanding in many sections of the nation, particularly in Alberta, Saskachewan, and Quebec. This trend will almost certainly increase dramatically if the Notwithstanding Clause is eliminated before reform of the Supreme Court, especially composition reform, is instituted. While removing the Clause is a laudable long term goal, it should be preceded by change within the Supreme Court itself. To do otherwise will almost certainly create an explosion of separtist activity in many locations throughout the nation. When one contemplates the possibility of a hostile United States administration taking advantage of this activity to achieve their own ends the prospect for the citizens of Canada is not particularly positive.
Nevertheless if patience is combined with hard bargaining in intergovernmental (Canadian) affairs an adjustment of the Supreme Court, specificly in it's systemic composition, could be achieved. Indeed realigning the Supreme Court while absolving the Notwithstanding clause could be linked as a strategy. Such actions would add immeasurably to the nations highest court's legitimacy!
Canada's federal government stands on the threshold of a monumental error, one which could be an existential threat to the Northern Kingdom. Yet there is also oppurtunity to steer the ship of state onto a brighter path in the legal realm than it has previously enjoyed. Reform the court, reform the Charter by eliminating the Notwithstanding Clause, thereby ensuring Canadians Rights and Freedoms are not priveleges. First though reform the Supreme Court!
References
Behind Provinces Accelerated Use of Notwithstanding Clause? Opportunism and a Populist Script
December 8, 2023, Emily Laxer
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