Notwithstanding Clause: What Is It and Why Is Saskatchewan Resorting to It on School Pronoun Policy?

Saskatchewan Premier Scott Moe looks on during a tour at Lakewood Civic Centre in Saskatoon, Sask., on Sept. 29, 2023. The Canadian Press/Heywood Yu

The notwithstanding clause has been invoked only a handful of times by a few provinces since the Canadian Constitution was patriated in 1982, but its use has increased in recent years.

Saskatchewan is the latest province to threaten to invoke the clause, with Premier Scott Moe saying he will use the controversial charter section to pass legislation ensuring the province’s school pronoun policy remains in place.

Saskatchewan also used it in 2017 to override a court ruling that would have revoked provincial funding for non-Catholic students attending Catholic schools.

Ontario Premier Doug Ford used the clause in June 2021 in order to limit third-party election financing. He had also threatened to use it in 2018 to uphold his plan to reduce the number of seats on the Toronto City Council, but later backed away.

In October 2022, Mr. Ford again invoked the clause during a dispute with the Canadian Union of Public Employees (CUPE) over the union’s demand for an 11.7 percent annual pay raise for 55,000 education assistants, early childhood educators, and administrative assistants. The clause was used to table back-to-work legislation and to stop workers from negotiating further.

In May 2022, the Quebec government under Francois Legault pre-emptively invoked the notwithstanding clause to support Bill 21, which bans the wearing of religious symbols by public sector workers. Quebec also used the clause to support Bill 96, the government’s new language law adopted in June 2019.

Saskatchewan’s current move to use the clause came about after Court of King’s Bench Justice Michael Megaw on Sept. 28 granted an injunction pausing the government’s policy requiring parental consent if children under 16 want to go by a different name or gender pronoun at school.

Minister of Justice and Attorney General of Canada Arif Virani speaks during a media availability after a cabinet swearing-in ceremony at Rideau Hall in Ottawa on July 26, 2023. Justin Tang/The Canadian Press

The injunction was sought by lawyers for the UR Pride peer-to-peer organization, who argued the policy would violate students’ charter freedoms.

Following the injunction, Premier Scott Moe said on X, formerly known as Twitter, that his government would take “immediate action to ensure the rights of Saskatchewan parents are protected and that this policy is implemented by recalling the Legislative Assembly and using the notwithstanding clause of the Canadian constitution to pass legislation to protect parental rights.”

“It is in the best interest of children to ensure parents are included in their children’s education, in their classrooms and in all important decisions involving their children,” he said.

Mr. Moe’s intention to use the clause coincides with efforts in New Brunswick to adopt legislation on pronouns and gender identity in schools, as well as growing pushback against the teaching of sexual orientation and gender identity in schools across Canada.

Provinces have argued that the notwithstanding clause is necessary to pass legislation in the best interest of their citizens. However, some federal officials and advocacy groups are worried that the rights and freedoms of Canadians could be curtailed as a result of the clause’s application.

History

The notwithstanding clause, also known as Section 33 of the Charter of Rights and Freedoms, gives provincial parliaments the power to override certain parts of the charter, through the passage of a law, for a five-year term when passing legislation. The clause can only override certain sections of the charter, such as Section 2 and Sections 7 through 15, both of which deal with fundamental freedoms, legal rights, and equality rights.

Once the notwithstanding clause has been invoked, it prevents any judicial review of the legislation in question for five years, after which point it ceases to have any effect unless it is re-enacted.

The clause was included in the charter in the 1980s to ensure federal and provincial parliaments would maintain supremacy over the courts. While the former Liberal prime minister Pierre Trudeau, creator of the charter, wanted Canada to have an established bill of rights, there were concerns that the charter would give courts and judges too much power without a notwithstanding clause.

Prime Minister Pierre Trudeau gets a round of applause from Liberal MPs in the House of Commons after signing an accord with the provincial premiers during constitutional talks, in Ottawa on Nov. 5, 1981. CP Photo/Fred Chartrand

The clause has been used the most by Quebec. It was first invoked in Quebec in 1982 when the government passed an omnibus enactment that invoked the clause across all new legislation until 1985.

In January 2023, Prime Minister Justin Trudeau said in an interview with La Presse that he was considering asking the Supreme Court to answer questions on the use of the notwithstanding clause. He said provinces shouldn’t be pre-emptively using it because it amounts to “suspending fundamental rights and freedoms.”

Mr. Legault said in turn that the prime minister was attacking Quebec’s “democracy and people” by suggesting he would limit the use of the notwithstanding clause.

“This desire expressed by Justin Trudeau is a frontal attack on our nation’s ability to protect our collective rights,” he said.

In October 2022, after Mr. Ford drew criticism from the federal government for his plan to use the clause during the CUPE dispute, he insisted it was within the province’s right to use the clause.

He said the prime minister was free to reopen talks with the province regarding the Constitution and the notwithstanding clause, but he recommended against it.

The federal government has so far not invoked the notwithstanding clause.

Feds Versus Provinces

Federal officials have been critical of the increasing regularity of provincial governments invoking the clause to get legislation passed. In November 2022, Mr. Trudeau said 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.

In May 2022, then-justice minister David Lametti said Quebec’s pre-emptive use of the clause would shut down debate and prevent a proper judicial review of legislation. He said the notwithstanding clause is meant to be the “last word” for a provincial legislature to exercise its sovereignty.

“If it’s used at the beginning, it guts Canadian democracy and means the charter doesn’t exist,” he told reporters.

Alberta Premier Peter Lougheed speaks at a news conference in file photo from 1984. The Canadian Press/Staff

Current Justice Minister Arif Virani said in a statement on Sept. 29 that the Saskatchewan government is choosing to use the notwithstanding clause even though “the judge agreed that what the government is doing may cause irreparable harm to some of its most vulnerable young people.”

The Liberal government’s opposition to the provinces’ use of the clause is in line with the position of the Liberal government of Pierre Trudeau, who patriated the Constitution in 1982 but was in effect forced to include the clause to get the provinces on board.

Former Alberta premier Peter Lougheed, who often butted heads with former prime minister Pierre Trudeau and was responsible for the inclusion of the clause, described the existence of the clause as a “trade-off.”

“Essentially Mr. Trudeau got his Charter of Rights and the Western Premiers got both the Alberta Amending Formula and a notwithstanding clause,” he once said.

While serving as premier, Mr. Lougheed explained the reasoning for including the clause when he was asked about it in the Alberta legislature in 1983: “We did not [want] to be in a position where public policy was being dictated or determined by non-elected people. We took the position that that therefore definitely needed to apply to Section 2 of the Constitution, under fundamental freedoms, insofar as the American experience had been that judicial interpretations and other actions which were fundamentally different from the view of legislators were taken from time to time.”

For his part, Mr. Moe has said his government is using the clause to protect the rights of the province’s parents.

“Our government is extremely dismayed by the judicial overreach of the court blocking implementation of the Parental Inclusion and Consent Policy—a policy which has the strong support of a majority of Saskatchewan residents, in particular, Saskatchewan parents,” he said on Sept. 28.

“Our government will take action to ensure the rights of Saskatchewan parents are protected and that this policy is implemented by recalling the Legislative Assembly and using the notwithstanding clause of the Canadian constitution to pass legislation to protect parental rights.”