ANALYSIS: Rising Use of Notwithstanding Clause: ‘Brute Political Force’ or Reasonable Response to ‘Overreaching’ Courts?

The Supreme Court of Canada in Ottawa on May 6, 2024. The Canadian Press/Sean Kilpatrick

As governments increasingly resort to the notwithstanding clause, some say it signifies further erosion of democracy and charter rights, while others argue it’s because “overreaching” courts aren’t allowing democratically elected lawmakers to carry out their mandates.

The clause is once again drawing attention after media reports honed in on April 29 comments by Conservative Leader Pierre Poilievre that he would tackle crime by using “whatever tools the Constitution allows me to use to make them constitutional.”

“I think you know exactly what I mean,” he told his Canadian Police Association audience.

The Liberals took that further to say that a Conservative government would use the clause to target abortion, an issue that successive Tory leaders have said they’re not going to revisit.

But partisan rhetoric aside, the clause has seen increased use in recent years. Saskatchewan used it last year to override a court order on school parental rights legislation. Ontario invoked it in June 2021 to limit third-party election financing, and came close to using it in 2018 and 2022. Quebec has made the most use of the clause, including to carry through its language laws.

Some are seeing this trend as a sign of governments using the clause to bypass Canadians’ charter rights.

“This is a different kind of politics around the use of the notwithstanding clause,” Margot Young, a professor in the Allard School of Law at the University of British Columbia, told The Epoch Times.

“It comes from a perspective that is not rights-enhancing. ... It’s a new variant of right-wing politics that is hostile to the kinds of traditional liberal rights and freedoms that we’ve seen the charter stand for.”

But other legal and political experts say the growing use of the controversial clause is a reasonable response to an increasingly overreaching and progressive judiciary that has blocked governments from enacting legislation.

“Over time, the courts, and especially the Supreme Court of Canada, have become increasingly progressive in their orientation and more willing to impose their subjective views of the proper policy response to societal problems,” Queen’s University Law Professor Bruce Pardy told The Epoch Times.

Conservative Party leader Pierre Poilievre rises during question period in the House of Commons on Parliament Hill in Ottawa on Dec. 13, 2023. The Canadian Press/Sean Kilpatrick

History of the Clause

The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, gives provincial parliaments the power to override certain parts of the charter through passage of a law. Once the clause has been invoked, it prevents any judicial review of the legislation in question for five years.

The clause was included in the charter in the 1980s to ensure federal and provincial parliaments would maintain supremacy over the courts. Former Liberal Prime Minister Pierre Trudeau, who was the main force behind the charter, agreed to the inclusion of the clause to address concerns from premiers who worried courts may have too much power over their legislatures.

While the notwithstanding clause has been used the most by Quebec to pass legislation, it has seen more usage in recent years elsewhere in Canada as well. Ontario invoked the clause in June 2021 to limit third-party election financing. The province also threatened its use in 2022 when negotiating a new contract with 55,000 Ontario education workers, as well as in 2018 when reducing city council seats in Toronto.

Saskatchewan invoked the clause in October 2023 to pass its “Parents’ Bill of Rights,” which required schools to have parental consent before using the preferred name or gender identity for youth under 16. In April, New Brunswick Premier Blaine Higgs said he wouldn’t rule out using the notwithstanding clause as part of legislation allowing authorities to force people with severe addiction into treatment.

Prime Minister Justin Trudeau said in November 2022 that Canadians should be “extremely worried” about provincial governments using the clause pre-emptively to temporarily suspend their rights and freedoms. “The Charter of Rights and Freedoms cannot become a suggestion. The outrage we’re seeing across the country right now …  I think, is a moment for all Canadians to reflect,” he said.

The federal government hasn’t ever invoked the notwithstanding clause.

The justice statue at the Supreme Court of Canada on Parliament Hill in Ottawa on June 17, 2021. The Canadian Press/Justin Tang

‘Brute Political Force’

Ms. Young said it’s wrong for a prime ministerial contender to raise the spectre of using the notwithstanding clause to pass legislation.

“The relationship that the leader of our executive, the prime minister, ought to have towards the Constitution should be one of respect and deep commitment to upholding the Constitution,” she said.

The notwithstanding clause was meant to be a “king of escape hatch” to be used when the Canadian public’s perspective of the scope of a right differs from what the courts said, according to Ms. Young. But she said some conservative premiers have begun using the clause in opposition to certain rights.

Ms. Young also rejected the argument among some legal scholars that the notwithstanding clause is a “necessary corrective to the institution of judicial review.” She believes that using the clause in such a way amounts to “irresponsible, dog-whistle politics that do not demonstrate calibrated, careful, contextual consideration of when Section 33 is warranted and effective.”

Kerri Froc, an associate law professor at the University of New Brunswick, said the most recent instances of using or threatening to use the notwithstanding clause seems to be “more about brute political force” than “making reference to rights or respecting the charter.”

Ms. Froc told The Epoch Times that the clause as it was originally intended to be used has been “distorted,” and more constraints should be put on its usage.

“I think there are procedural things that we can do to make sure that the notwithstanding clause operates as it was intended, rather than governments using it just because they can, because it’s an exercise of political might, and maybe because they have hostility towards rights or to the courts,” she said.

Prime Minister Justin Trudeau and Quebec Premier François Legault chat while walking to a meeting in Montreal, on Dec. 20, 2022. The Canadian Press/Paul Chiasson

‘Progressive’ Courts

Mr. Pardy, however, argues that the increasing usage of the clause is a reaction to courts using the Charter of Rights and Freedoms to “create policy and act like legislatures.” He accused the Supreme Court of gradually transforming the charter from a “roster of individual rights to a blueprint for progressive values and collective rights.”

Mr. Pardy, the executive director of Rights Probe, said that before the charter was introduced, Parliament could enact laws within federal jurisdiction.

“The charter shifted power to the courts. Under the charter, the Supreme Court of Canada became the ultimate arbiter of whether legislation was to be allowed,” he said.

According to Mr. Pardy, the notwithstanding clause is the “last remnant of legislative supremacy” that allows Parliament or provincial legislatures to pass laws instead of courts.

In response to critics who have said repeated usage of the notwithstanding clause would undermine the charter, Mr. Pardy argued that “over time the Supreme Court has been doing that all by itself.” He also pointed out that the notwithstanding clause is part of the charter, and as such is “part of the political deal that was made in 1982 to bring the charter into being.”

Lawyer Barry Bussey, president of the First Freedoms Foundation, agreed that the notwithstanding clause is part of the charter and said it was created to prevent “power going to unelected judges who were going to be in essence making political decisions.”

Mr. Bussey said in many cases courts have become “overreaching,” interfering with the work of elected representatives. He added that in some cases judges have even made “political” comments, pointing as an example to Chief Justice Richard Wagner’s comments that the 2022 Freedom Convoy protest was “the beginning of anarchy, where some people have decided to take other citizens hostage.”

He told The Epoch Times that he sees the notwithstanding clause as a necessary “balance” between the legislature and the judiciary.

“It’s an important tool for politicians and for the country as a whole to be able to say, ‘Hey, you know what, you can only carry on so far with political judges.’”

Mr. Bussey said politicians who use the notwithstanding clause irresponsibly are also beholden to the electorate, who will oust them if it is used in that manner.

“Within the system itself, within the language of the notwithstanding clause, you already have a protective barrier there that prevents it from getting off to an extreme,” he said.