Is Canada’s Notwithstanding Clause Reformable?
Changing the notwithstanding clause will pull at several divisive issues at the heart of Canadian politics, pitting a Liberal federal government against conservative provinces.
As we noted in the last installment, there is growing discontent with several parts of the Canadian 1982 Constitution Act, the document that “patriated” the Canadian constitution, until then an act of the United Kingdom Parliament, and added the Canadian Charter of Rights and Freedoms. The final Act was incomplete, and left several pieces of unfinished business, most notably a stronger recognition of the dual, or binational, nature of Canada. But at patriation’s fortieth anniversary, there are other things that various players in Canadian politics would like to change in the constitution. These include reform to the federal Senate, recognition of aboriginal land claims and an inherent right to aboriginal self-government, reforms to the House of Commons, including its electoral system (this would not necessarily require amending the constitution), revising the division of powers between the federal and provincial levels of government, and reconsideration of the monarchy. One other contentious matter is the “notwithstanding clause,” Section 33 of the Charter of Rights, which states that “Parliament or the legislature of a province may expressly declare that [an] Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of th[e] Charter.”
In April 1982, the First Ministers included Section 33 in the Charter as part of a compromise to make the Charter acceptable to several provincial governments, generally Conservative governments in the western part of the country. These governments generally opposed the idea of a charter of rights that permitted judicial review of provincial legislation, and agreed to a charter once they were granted the ability to override court decisions in limited areas. It draws upon the notion of parliamentary supremacy endemic to Westminster-type systems, and many considered it a democratic tool to use to protect the decisions of elected legislatures (for example, campaign finance restrictions) against absolutist interpretations of Charter rights (for example, financial contributions as free speech) by the courts. There was also a belief that the notwithstanding clause would exist as a last resort, for a legislature to overturn a court decision that went against public opinion. Section 33 was not written to reflect that norm, and on paper allowed legislatures to override the Charter at will, and to do so preemptively. However, in the early years, the clause was used sparingly, with René Lévesque’s Parti Québécois government applying it to all legislation in a symbolic way, and Robert Bourassa’s government invoking it once in 1988 to override a Supreme Court of Canada ruling invalidating part of a law regulating the language of commercial signage.
Beginning in 2019, provincial governments changed the way they approached the notwithstanding clause, and began to use it more freely, and not in response to court decisions. The Legault government in Québec invoked the notwithstanding clause preemptively in Act 21, its secularism law that prohibited certain public employees from wearing religious symbols on the job, and Act 96, the law revising the Charter of the French Language. In 2021, Ontario invoked the clause to pass Bill 307, reestablishing restrictions on third-party election advertising that had been struck down by a court. Then in 2022, Ontario used Section 33 preemptively to impose a contract upon education support workers and prevent their union from striking.
This marked a shift in the norms surrounding the use of the notwithstanding clause, in which it became less of a last resort and a tool that governments seemed to be threatening to invoke regularly. Use of Section 33 also took on a partisan tone, as center-right, or even right-wing populist, provincial governments invoked it as a challenge to the federal Liberal government of Justin Trudeau. In some quarters, it is a populist challenge to Liberal hegemony over Canadian federal institutions, in this case, the Supreme Court of Canada. Predictably, more liberal elements in Canadian politics have called on the Trudeau government to defend the Charter of Rights and Freedoms, and more specifically, call for use of the notwithstanding clause to be restricted, or for the clause to be removed from the constitution altogether.
Reconsidering the notwithstanding clause will pull at several divisive issues at the heart of Canadian politics, including Quebec’s role in Canada, the rights of women and minority groups, and the federal division of powers. While it probably would not require the unanimous consent of the provinces to change Section 33 (the “seven-fifty” amending formula would apply), calls for such change would quickly pit a Liberal federal government against conservative provincial governments. Therefore, there is unlikely to be any push for changing Section 33 in the short term. However, in the next couple of years, there will likely be court cases testing Quebec’s Bills 21 and 96, as well as Alberta’s Sovereignty Act, which does not invoke the notwithstanding clause but will acquire a political connection to the Quebec bills via court cases testing the federal division of powers. The issue will only become more pointed if there is more use of Section 33 at the provincial level.
References:
https://www.cbc.ca/news/canada/toronto/notwithstanding-clause-vote-ontario-1.6064952
https://www.cbc.ca/news/canada/toronto/ontario-notwithstanding-cupe-strike-1.6635564
https://www.economist.com/the-americas/2022/12/08/the-ticking-bomb-under-canadas-constitution
https://heinonline.org/HOL/LandingPage?handle=hein.journals/canbarev61&div=9&id=&page=
https://laws-lois.justice.gc.ca/eng/const/page-12.html.
https://thewalrus.ca/the-notwithstanding-clause-is-it-time-for-canada-to-repeal-it/
https://utorontopress.com/9781551110899/the-charter-revolution-and-the-court-party/
https://utorontopress.com/9780802095992/the-politics-of-the-charter/