Thoughts on Prairie Populism and the Canadian Constitution
A very notional draft of a paper from a longer research project on the notwithstanding clause of the Canadian Charter of Rights and Freedoms..
I. Introduction
Alberta and Saskatchewan initially embraced patriation only after securing strong provincial resource protections (Section 92A), while also harboring concerns about judicial empowerment under a Charter of Rights and Freedoms. The Charter’s notwithstanding clause (Section 33) emerged as the critical compromise to preserve legislative supremacy, ratified at the “Kitchen Accord” but immediately controversial, especially in Quebec. Prairie attitudes have evolved from opposition to bilingualism and French‑language dualism toward economic grievances—particularly federal resource‑revenue sharing—and more recently “culture‑war” flashpoints. Populist governments in both provinces (the UCP in Alberta and the Saskatchewan Party) have invoked or threatened to invoke override powers and enacted “Sovereignty” or “Parents’ Rights” Acts in direct challenge to federal authority, reflecting deep‑seated distrust of Ottawa as an agent of central Canadian elites. These developments mirror global 21st‑century populist trends that pit “the people” against entrenched elites, raising questions about the resilience of liberal democratic institutions and Canadian federalism.
Conservative populism in Canada’s Prairie provinces has consistently identified the “Laurentian Elite” of central Canada as the principal antagonist, accusing Ottawa of appropriating Western resource wealth and imposing alien cultural priorities. From the 1982 patriation battles to today’s statute‑level refusals of federal mandates, constitutional politics have provided a focal point for Prairie grievance.
II. Historical Background: The 1982 Patriation
A. Federal‑Provincial Negotiations and Section 92A
The patriation of Canada’s Constitution in 1982 was conditional on provincial agreement to new amending formulas and rights protections. Alberta Premier Peter Lougheed led a “Gang of Eight” in demanding secure provincial control over natural resources, resulting in Section 92A, which entrenched provincial jurisdiction on resource management and royalty regimes. Saskatchewan’s Allan Blakeney similarly insisted on robust resource rights, though his government faced criticism from women’s groups who accused it of “trading rights” for resource protections.
B. Creation of the Charter and Amending Formula
Pierre Trudeau’s vision for an entrenched Charter of Rights and Freedoms aimed to guarantee individual rights and establish a stricter amendment process under the “7/50” formula. Several premiers worried the Charter would empower courts over legislatures, undermining parliamentary supremacy; this concern led to inclusion of the notwithstanding clause as a legislative safety valve.
III. The Charter of Rights and Freedoms and Section 33
A. Origins of the Notwithstanding Clause
Section 33 permits Parliament or any provincial legislature to override certain Charter rights (sections 2 and 7–15) for renewable five‑year periods, reviving legislative supremacy in specific contexts. It was brokered at the November 1981 First Ministers’ Conference (“Kitchen Accord”) by Jean Chrétien, Roy Romanow, and Roy McMurtry to secure provincial support for the Charter
B. Provincial Insistence on the Notwithstanding Clause
Alberta and Saskatchewan’s support for the 1982 Constitution was contingent on the inclusion of an explicit legislative override mechanism. Both provinces viewed an entrenched Charter of Rights and Freedoms—particularly one enforced by an empowered judiciary—as a potential threat to provincial autonomy and democratic self-government. They insisted on a clause that would allow legislatures to retain ultimate authority in key areas of policy, especially where courts might overstep while defining social norms or interfere with provincial jurisdiction over resources and social programs.
Saskatchewan was the first province to propose a formal override provision during the 1980 federal-provincial negotiations. Its premier, Allan Blakeney, concerned about the imposition of rigid judicial standards on provincial governance, drew on existing language in Saskatchewan’s own Human Rights Code to model what would become Section 33. Around the same time, Alberta Premier Peter Lougheed also pressed for an override clause, citing Alberta’s 1972 Bill of Rights, which already included a legislative supremacy provision. Both premiers viewed such a clause not as an attack on rights, but as a necessary safeguard for democratic decision-making in a federation.
The broader provincial push for an override mechanism gained momentum after Quebec circulated its so-called “Château Consensus” in the fall of 1980. Although Quebec later distanced itself from the proposal, it opened the door for other provinces to argue for greater flexibility in balancing rights protection with legislative sovereignty. By the time the “Kitchen Accord” was reached in November 1981, Alberta and Saskatchewan had made clear that they would not support patriation without such a clause.
Section 33, as ultimately adopted, reflected these concerns. It applied only to certain Charter rights—freedom of expression, legal rights, and equality rights—while excluding democratic and mobility rights. It also included a five-year sunset clause, requiring legislatures to renew any invocation of the override, thus ensuring periodic electoral accountability. This design was meant to reassure critics that the clause would not be used lightly or permanently.
Importantly, both Alberta and Saskatchewan considered Section 33 essential not just for symbolic reasons, but to protect provincial authority over critical policy areas. Courts, in their view, could not be entrusted with final decisions over complex issues such as energy regulation, education, and healthcare—areas where local priorities and public input were paramount. Blakeney even warned that without such a clause, the Charter could result in “absurd” or “unjust” outcomes imposed by distant courts unfamiliar with Prairie realities.
Finally, because both provinces already had override-like provisions in their own rights legislation, the inclusion of Section 33 was neither novel nor controversial locally. It fit into a broader Western political culture that emphasized direct democratic control and skepticism toward centralized or judicial power. The notwithstanding clause thus became, in their eyes, a uniquely Canadian compromise: one that permitted strong rights protection while affirming the primacy of legislatures in a federal democracy.
C. Quebec, Section 33, and the Politics of Exclusion
Quebec’s relationship with the Charter of Rights and Freedoms and Section 33 has been shaped fundamentally by its exclusion from the 1982 patriation of the Constitution. Premier René Lévesque, leading a Parti Québécois government at the time, walked out of the November 1981 First Ministers' Conference after what he and many Quebecers viewed as a betrayal: the “night of the long knives” when other premiers reached a late-night agreement with Prime Minister Pierre Trudeau, finalizing a deal without Quebec’s consent.
This rupture left deep institutional and emotional scars in Quebec politics, fueling arguments that the 1982 Constitution—and by extension the Charter—lacked legitimacy in the province. Although the Charter became binding across Canada, including in Quebec, successive provincial governments, both sovereigntist and federalist, asserted that it did not represent a consensual constitutional order. This context significantly influenced how Quebec invoked Section 33.
Immediately after patriation, the Lévesque government passed omnibus legislation applying Section 33 to every provision of every provincial law. This blanket invocation was largely symbolic—a protest against Quebec’s constitutional exclusion rather than a practical legal necessity. Over time, however, the clause became a functional tool of governance in Quebec, particularly when provincial legislation conflicted with interpretations of the federal Charter.
Quebec’s legal and political culture has long been shaped not only by the Canadian Charter but by its own Charter of Human Rights and Freedoms (la Charte des droits et libertés de la personne), adopted in 1975. Unlike the federal Charter, Quebec’s charter is not constitutionally entrenched, nor is it part of a written provincial constitution in the legal sense. Rather, it is a statute with quasi-constitutional status in practice—but still subject to the ordinary principles of statutory interpretation. As a result, any subsequent provincial law may override the Quebec Charter simply by clearly expressing that intent.
This creates an implicit notwithstanding clause: courts generally interpret specific laws that declare they apply “despite” the Quebec Charter as valid, so long as the legislature’s intent is explicit. For example, Bill 96 (2022), the province’s major language law reform, includes the declaration: “This Act applies despite sections 1 to 38 of the Charter of human rights and freedoms (chapter C-12).” This approach enables Quebec to legislate around its own rights protections.
Thus, while Quebec has relied on Section 33 in major legislation—such as Bill 178 on language signage, Bill 21 on secularism, and Bill 96 on language policy—it also bypasses Charter rights at the provincial level through targeted statutory disclaimers. In both approaches, Quebec asserts a vision of parliamentary sovereignty that prioritizes collective cultural and linguistic identity over judicially enforced universal rights. The effect is a dual-track override mechanism: one symbolic and constitutional (via Section 33), and one functional and internal (via statutory construction and legislative hierarchy).
IV. Provincial Attitudes, 1982–Today
A. Alberta’s Reaction to Patriation and the Charter
In Alberta, the 1982 patriation was widely seen as a Faustian bargain: resource protections exchanged for acceptance of a Charter viewed as overly judicialized. Many Albertans resented Trudeau’s dual‑language vision, feeling it prioritized Quebec’s model over Western sensibilities. Successive governments, particularly under Ralph Klein in the 1990s, embraced fiscal restraint but maintained skepticism toward Charter‑based judicial interventions.
B. Saskatchewan’s Perspective on Section 33
Saskatchewan exhibited a more tempered view: while the Blakeney government reluctantly accepted Section 33 to achieve patriation, civil‑society groups and later Roy Romanow’s NDP government emphasized rights protections and cautioned against override abuse. Commentators often framed the clause as a political safety valve rather than a routine policy tool.
V. Evolution of Prairie Grievances
A. From Language Dualism to Economic Resentment
Early grievances focused on bilingualism and a Quebec‑centric constitutional vision, perceived by many Westerners as privileging French‑language rights over their own cultural and linguistic priorities. As Quebec’s discord waned in the 1990s, attention shifted to economic federalism: the National Energy Program became emblematic of Ottawa’s resource appropriation, reinforcing Western alienation through arguments that central governments siphoned provincial wealth.
B. Rise of “Culture-War” Issues and the Charter as Elite Instrument
Although the contemporary wave of Prairie populism is often linked to modern “culture-war” concerns—such as educational curricula, gender identity, and climate policy—the roots of this opposition to constitutional liberalism go back to the immediate aftermath of the Charter’s adoption in 1982. In Alberta especially, conservative thinkers and political leaders began to express concern that the Charter was not a neutral framework for protecting rights but an elite-driven project that elevated the claims of certain minority groups at the expense of democratic majorities.
This critique was articulated most sharply in what came to be known as the “Court Party” thesis, pioneered by scholars like F.L. Morton and Rainer Knopff. They argued that the Charter had enabled the rise of a new coalition of social movement organizations, law professors, and public interest litigators who formed a kind of judicial lobbying class—what Morton called a “Court Party”—capable of using litigation to achieve policy victories they could not secure through the democratic process.
In this view, the Charter transformed Canadian politics by transferring power from legislatures to courts, privileging the voices of so-called “Charter Canadians”—minority constituencies that aligned ideologically with the Trudeau government, such as linguistic minorities, feminists, and sexual minorities—while marginalizing the policy preferences of voters in regions like Alberta and Saskatchewan who were more inclined toward majoritarian democracy and provincial autonomy .
The theory gained additional traction through the work of Ian Brodie and Neil Nevitte, who empirically evaluated whether this “Citizens' Constitution” reflected the will of ordinary Canadians. Their research found that, contrary to the egalitarian ideals the Charter purported to uphold, the dominant interpretation and usage of the Charter favored elite institutions and networks. Brodie and Nevitte suggested that Charter-based litigation often required significant legal resources and was guided by interests far removed from the economic and cultural concerns of many Albertans.
By the 1990s, this narrative had taken root among Alberta conservatives, contributing to a broader sense of constitutional alienation. The Supreme Court of Canada, through decisions in areas such as language rights and abortion, was increasingly viewed not as a neutral arbiter of rights but as an instrument of central Canadian social values. As such, resistance to the Charter was less about rights per se than about the belief that it represented a constitutional mechanism that favored liberal elites and constrained democratic self-government.
This sentiment helps explain the enduring appeal of the notwithstanding clause in Prairie political discourse. It was not only seen as a tool for overriding specific decisions, but as a broader safeguard against what many perceived to be a tilted constitutional playing field. The perception that the Charter, as interpreted by the judiciary, encoded a set of progressive values at odds with Prairie conservatism continues to inform populist appeals today—now cast in terms of resisting "woke" ideology or protecting "parental rights," but rooted in a decades-long skepticism toward the Charter’s legitimacy and neutrality.
Saskatchewan's political culture also shifted decisively during this period. As Dale Eisler documents in From Left to Right: Saskatchewan’s Political and Economic Transformation, the province underwent a profound reorientation beginning in the late 1990s and accelerating after the election of the Saskatchewan Party in 2007. Long known for its social democratic traditions and role in pioneering public health care, Saskatchewan increasingly embraced fiscally conservative, pro-market, and culturally traditionalist policies. This political transformation helped normalize skepticism toward centralized rights regimes and fostered a populist style of governance that mirrors the broader ideological shift visible across the Prairie West.
VI. Case Studies of Populist Provincial Legislation
A. Alberta’s Sovereignty Act and Provincial Priorities Act
In 2022, Alberta enacted Bill 1 (the Sovereignty Act), pledging to refuse federal laws deemed unconstitutional unless ratified provincially; it also passed a Provincial Priorities Act directing public bodies to align with provincial policies ahead of federal ones. Premier Danielle Smith threatened Section 33 use on federal health directives and trans‑rights legislation, portraying such measures as vital to protect “the people” from judicial and federal intrusion.
B. Saskatchewan’s Carbon‑Tax Refusal and Parents’ Bill of Rights
The Saskatchewan Party passed legislation refusing to collect shared carbon taxes, declaring federal climate policy unconstitutional absent provincial consent. Its Parents’ Bill of Rights similarly asserts provincial authority over education content, pre‑emptively overriding federal human‑rights guidance on pronoun use and gender identity. Both statutes invoke constitutional interpretations that elevate popular will over perceived judicial or federal overreach.
VII. Pierre Poilievre and Federal Use of the Notwithstanding Clause
In April 2025, Conservative Party leader Pierre Poilievre announced that, if elected Prime Minister, he would invoke the federal government's authority to use the notwithstanding clause (Section 33 of the Charter of Rights and Freedoms) to reintroduce consecutive life sentences for individuals convicted of multiple murders. This proposal aims to override a 2022 Supreme Court ruling that deemed such sentencing practices unconstitutional on the grounds of violating human dignity and constituting cruel and unusual punishment
Poilievre's pledge marks a significant departure from historical precedent, as no federal government has previously utilized the notwithstanding clause. His stance aligns with a broader populist narrative that emphasizes majority rule and challenges the judiciary's role in protecting minority rights. This approach resonates with sentiments in Alberta and Saskatchewan, where provincial governments have invoked Section 33 to assert regional autonomy and counteract federal policies perceived as encroachments on provincial jurisdiction .
Legal experts have expressed concern over Poilievre's proposal, suggesting that it represents a "very dangerous sign" of politicizing fundamental rights and undermining the Charter's protections . The move also raises questions about the balance between parliamentary sovereignty and judicial oversight, a tension that is central to Canada's constitutional framework.
The federal Conservative leader's willingness to employ the notwithstanding clause reflects a growing trend of populist leaders leveraging constitutional mechanisms to advance policy objectives that may conflict with established rights protections. This development underscores the need to examine the implications of such strategies on the integrity of Canada's liberal democratic institutions.
VIII. Populism and Liberal Democracy
A. Populist Attitudes Toward Constitutional Institutions
Prairie populist resistance to federal authority and judicial oversight is more than a regional grievance—it reflects broader tensions between populism and liberal democratic institutions. At the heart of the populist worldview is a belief in a singular, unified “will of the people” that should guide political decision-making. This idea, traceable to Jean-Jacques Rousseau’s concept of the volonté générale, holds that legitimate authority stems from the unmediated, collective expression of the people's will. In theory, the general will is universal and inclusive; in practice, however, populists often define “the people” in exclusionary terms, based on shared language, region, class, ethnicity, or cultural identity.
This narrowing of the political community—what some scholars have called the illusion of homogeneity—lies at the root of the populist challenge to liberal democracy. Institutions like courts, rights charters, and independent agencies are often seen by populists not as safeguards of fairness or minority protection, but as obstacles to majority rule. In this light, constitutional guarantees are recast as elite tools used to block the authentic voice of the majority, who are imagined as culturally unified and morally upright.
B. Whose People? The Limits of Populist Inclusion
Theda Skocpol’s work on right-wing populist movements in the United States, especially the Tea Party and post-2016 Trumpism, identifies a recurring pattern: populist movements often arise among constituencies who see themselves as “the real people,” besieged by unresponsive elites and undeserving minorities. These movements do not seek the inclusion of all citizens but rather the restoration of a perceived moral and cultural order that privileges their own experiences and values. In this respect, populist appeals to “the people” are inherently bounded—excluding not only elites but also racial, linguistic, or ideological minorities perceived as external to the community.
Ronald Inglehart and Pippa Norris, in their analysis of the “cultural backlash” thesis, similarly argue that recent populist upsurges in both North America and Europe stem not only from economic dislocation but also from a defensive reaction by socially conservative groups against progressive cultural change. These voters respond favorably to leaders who claim to speak for a culturally homogeneous and morally upright nation—a construct that often maps poorly onto liberal democratic pluralism. When such movements capture state power, they tend to attack judicial independence, dismiss media institutions, and question the legitimacy of rights-based review, all in the name of defending “the people.”
In the Canadian Prairie context, this dynamic is evident in how populist leaders invoke regional identity, economic marginalization, and cultural grievance to contest the authority of Ottawa and the Charter. The “people” in question are implicitly rural, resource-based, and socially conservative—those who feel alienated by what they see as central Canadian liberalism, multiculturalism, and technocratic governance. Courts, federal agencies, and even minority rights protections are viewed not as neutral institutions but as instruments of a cosmopolitan elite that governs without true democratic legitimacy.
Stephen Levitsky and Daniel Ziblatt, in How Democracies Die, argue that liberal democracy depends not only on institutions but on shared norms—mutual toleration and institutional forbearance among political actors. Populist movements, especially when they define political opponents as existential threats to “the people,” often erode these norms. By casting adversaries as enemies of the nation rather than as legitimate political competitors, populists invite constitutional hardball, including override provisions like Section 33, as weapons of political purification rather than instruments of deliberative balance.
C. Populism and the Canadian Compromise
Canada’s institutional architecture, with its deep commitment to rights protection and judicial review, was designed to accommodate diversity—linguistic, cultural, regional. Section 33 of the Charter reflects a deliberate compromise between liberal constitutionalism and democratic pluralism. Yet when invoked by populist governments, it can become a tool not of compromise but of majoritarian dominance, used to preempt judicial decisions or block the rights of minorities under the guise of respecting “the will of the people.” In such cases, what is really being asserted is not democratic openness but a restricted moral vision of the nation—a vision that elevates one kind of citizen over others.
The populist dynamic in Alberta and Saskatchewan is thus not merely about resistance to Ottawa or support for provincial rights—it is part of a larger global pattern in which populist actors reinterpret democratic legitimacy to mean the unchecked rule of a culturally specific and politically exclusive “people.” Understanding this ideological framework is essential to assessing the long-term implications of override powers, sovereignty acts, and legislative assertions of local control. These moves are not just legal arguments about jurisdiction; they are political arguments about who belongs, who decides, and who counts as “us.”
IX. Conclusion
Alberta and Saskatchewan attitudes toward patriation, the Charter, and the notwithstanding clause have shifted from early defense of provincial autonomy to contemporary clashes over culture and economics, framed as existential battles between “the people” and Ottawa’s elites. Populist provincial legislation has transformed constitutional questions into front‑line political tools, echoing global challenges to liberal democracy and federalism. Understanding these dynamics is essential for charting pathways to renewed national unity and constitutional accommodation.