Tom Axworthy says he is no longer surprised when he learns that a provincial government has used the notwithstanding clause of the Canadian Charter of Rights and Freedoms to overturn or pre-empt a court ruling.
“I guess a few years ago I was astounded, and now I’m just resigned,” said Axworthy, former prime minister Pierre Trudeau’s principal secretary, who advised Trudeau during the Constitution consultations that led to the creation of the Charter of Rights and Freedoms.
But Axworthy, who is currently the public policy chair at Massey College, lamented that the use of the controversial clause, once viewed by many as a political taboo, has become more frequent in recent years, something he attributes, in part, to the rise of populism.
“We are in an age where we seem to have some premiers who are particularly populist leaning,” he said. “Their base is the most important. And older norms and constraints have seemed to fall away or be much less of a constraint.”
That premiers seem more open to using the notwithstanding clause has sparked concerns from some legal experts, who worry that it will now be used as a tool to trample on minority rights. Yet others contend the courts have overreached, and that the notwithstanding clause is a legitimate constitutional measure to be used by elected leaders.
David Schneiderman, a law professor at the University of Toronto, echoed Axworthy’s comments that populism is a factor in its increased use, and “what are perceived to be threats to sort of dominant cultural majoritarian values.”
Just last week, Alberta Premier Danielle Smith invoked the notwithstanding clause for three pieces of legislation pertaining to transgender youth and adults. This came nearly a few weeks after Smith had used the clause as the government introduced legislation to force striking teachers back to work.
Meanwhile, Ontario Premier Doug Ford, who has also used the clause, recently mused he would use it again for legislation that would make information on a sex offender registry open to the public.
Section 33 — known as the notwithstanding clause — allows for premiers or prime ministers to override rulings on legislation that judges have determined would violate sections of the Charter for a five-year period.
The clause can override certain sections of the Charter — including Section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights — but can’t be used to override democratic rights.
It’s been used at the provincial level, including by Saskatchewan, Quebec and Ontario, but no federal government has ever used the clause to pass a law. The clause has mostly been used in Quebec, which included it in every piece of legislation from 1982 to 1985 as a form of political protest.
However, it was initially used sparingly by the English-speaking provinces. But after a 13-year gap, there was renewed interest in the clause between 2018 and 2023, says Lydia Miljan, a political science professor at the University of Windsor.
Miljan wrote a report for the Fraser Institute in which she found the use of the clause has become more normalized as some premiers now see it as a legitimate tool when governing.
But she also found that there doesn’t seem to be much in the way of political backlash if the clause is invoked.
“At the time that someone invokes it, it’s like ‘Oh my God, they used the nuclear option How dare they?’ They will rue the day. You have all that kind of … outrage,” she said.
“Unfortunately, governments really don’t have to face the consequences, at least they haven’t so far, of invoking the clause prior to an election campaign.”
Beginning in 2017, Saskatchewan used it to overrule a lower court decision on funding for non-Catholic students in Catholic schools. And since then, other provinces used it more regularly.
Ford used the clause in 2021 to put limits on third-party election advertising. He used it again in 2022 to prevent a strike of education workers but then, after public backlash, repealed its use. However, he has since mused about using it for other legislation.
Meanwhile, two years ago, Saskatchewan Premier Scott Moe invoked the notwithstanding clause for a law that prevents children under 16 from changing their names or pronouns at school without parental consent.
At the time it was introduced, the expectation was that the notwithstanding clause would only be used in extreme cases of judicial activism going against prevailing popular opinion, Miljan wrote in her report.
“The premiers that were involved in inserting the notwithstanding clause into the Constitution, they definitely saw it as something that is of last resort,” said Kerri Froc, who is an associate professor of constitutional law at the University of New Brunswick.
“It wasn’t anticipated that it would be used, in a way, to thwart the Charter, to be antagonistic towards the Charter.”
Schneiderman said the premiers back then had in mind the early 20th-century U.S. Supreme Court, and concerns Canada’s top court could strike down all kinds of social and economic legislation
“If courts intervened in ways that really frustrated important social policy measures, then the notwithstanding clause would be available,” he said.
Notwithstanding clause was considered a ‘nuclear’ option. Is it still?
Geoffrey Sigalet, director of the UBC Research Group for Constitutional Law, co-wrote a research paper on the use of the notwithstanding clause. The study found that the clause became “a partisan tool for resisting centralizing rights decisions” as clashes between conservative provincial governments and the Liberal federal government of Justin Trudeau increased.
However, the study also found that the use of the clause increased as the rates at which provincial laws were being struck down by the Supreme Court of Canada were going up.
“So [the provinces are] using the notwithstanding clause as their mechanism for injecting their views about the Charter into the conversation,” Sigalet said.
Schneiderman said he’s not against the use of the clause, in principle, but it all depends on what it’s being used for.
“If courts were issuing rulings that interfered with important and valuable social policy, then I might think it’s OK. But what I see here are governments using Section 33 to limit the rights of people who are already marginalized.”
But Sigalet said this is an issue about democratically elected legislatures disagreeing about Charter rights, as the courts have pushed the envelope on lots of these rights questions.”
“When people say that the legislature should be very careful using section 33, it should only use it rarely or it’s a nuclear option. That’s fine,” he said.
“Why would we expect the legislature to not also be more aggressive in responding and contesting those kinds of decisions that invade its jurisdiction?”
Miljan echoed Sigalet’s comments that the courts may be reading rights into the Charter, while displacing the role of legislators.
“In terms of policy making, you could say the provinces do have a legitimate case to make that they’re the elected officials and they should be deciding policy, not courts.”
