Despite the formation of Canada in 1867, up until 1982 Canada still did not have a homegrown written constitution. Yes, there existed a constitution known as the Constitution Act, 1867 which provided a framework for governance based on the British governmental system; however, the constitution was created and controlled by British Parliament. In 1980, then Prime Minister Pierre Trudeau set out to change this by obtaining control of Canada’s constitution from the British and proceeding to update it (now named the Constitution Act, 1982), as well as add a Charter of Rights and Freedoms. This was a major election promise of his and one which he was successful in achieving. This success, however, was not without substantial controversy, as well as concessions made to appease provincial governments who were in dissent with the federal government’s constitutional aspirations. One of these concessions was the creation of the “notwithstanding clause” included in the Charter of Rights and Freedoms, which has had a sizeable impact on Canadian politics in the years since its creation and in my belief, poses substantial risks to democracy and the rule of law in Canada (Sheppard, 2023).
The notwithstanding clause is essentially a tool that federal, provincial, and territorial governments can use to uphold laws that violate sections 2 & 7-15 of the Charter of Rights and Freedoms. Once invoked, it lasts for 5 years and has to be reinvoked to keep in place the legislation it protects. In its decades old history, the clause has only been used by provincial governments, not the federal government (Government of Canada, 2022). Use of the clause has been quite rare; however, in recent years it has been used increasingly more (The Canadian Encyclopedia, 2022).
With the exception of Quebec, where it has been used many times over the years to protect Québécois culture and identity, there is a perceived stigma around invoking the clause. That being said, the current political climate we find ourselves in sees this unwritten rule or stigma around invoking the clause fading away. When premiers have invoked the notwithstanding clause, outcry from opposition parties and from many in the Canadian media has typically followed. What does not necessarily occur though is a backlash from voters that is congruent with the outcry from the groups mentioned.
For example, Quebec’s infamous (yet popular in Quebec) secularism laws, which many argue suppress religious freedoms, were protected by the government’s invoking of the notwithstanding clause (Stevenson, 2019). Despite this use of the notwithstanding clause back in 2019, Premier François Legault was re-elected in 2022 with an even larger majority than he had before (CBC News, 2022). Additionally, in Ontario Premier Doug Ford has invoked the notwithstanding clause twice during his tenure. The first time was to slash the number of Toronto City Councillors, the second time to change laws regarding election spending outside of official campaign periods (The Canadian Encyclopedia, 2022). As was Legault, Ford was re-elected with a larger majority in the election following his use of the clause (CBC News, 2022). In other words, neither premier was met by sizeable rejection from voters, despite their uses of the notwithstanding clause.
My fear is that if these unwritten rules or political norms continue to become of less importance as the trend indicates, then what check or balance is there on an ideologically driven first minister’s desire to enact a law, regardless of if it violates much of Canada’s constitution? It is this absence of an adequate check or balance on power that I believe makes the notwithstanding clause so incredibly problematic and potentially dangerous.
Despite these obvious flaws, it is likely that the notwithstanding clause is here to stay. This is because the clause is included in the Charter of Rights and Freedoms, meaning that the Constitution Act, 1982 (which contains the Charter of Rights and Freedoms) would need to be updated. This would be a tremendous undertaking given the amount of consensus you would need among legislators and governments. According to Centre for Constitutional Studies (2019), “the change needs to be approved by 1) the House of Commons, 2) the Senate, and 3) a minimum number of provincial legislatures. There must be at least seven provinces that approve the change, representing at least 50% of the population of all the provinces combined” (The General Procedure section, para. 2). For premiers who believe the federal government is continuously encroaching over their jurisdiction, the notwithstanding clause is a powerful tool to have at their disposal which they would be hard pressed to surrender.
For example, if the notwithstanding clause to were to become obsolete the Quebec government would have to repeal provincial laws currently protected by the clause, which many Québécois believe are vital to protecting their culture and language. This could be perceived by many Québécois as the federal government exercising an unjust degree of authority over their province and ability to run their society as they see fit. I believe this could risk breathing new life into a separatist movement in Quebec, which over the last couple of decades has been largely dormant.
To conclude this article, I want to leave you with the two rhetorical questions below, along with a link to the sections of the Charter of Rights and Freedoms which could be wholly infringed upon by the notwithstanding clause.
- What authority does the Supreme Court of Canada actually wield in upholding the Charter of Rights and Freedoms if much of it can be disregarded at the whim of a first minister?
- Are you comfortable with one person having the authority to simply cast aside some of your most basic freedoms if they decide that these freedoms do not align with laws they want to implement?
- Charter of Rights and Freedoms – the sections that can be violated by using the notwithstanding clause are 2 & 7-15 (Government of Canada, 2022).
References
CBC News. (2022). Ontario Votes. https://newsinteractives.cbc.ca/elections/ontario/2022/results/#/
CBC News. (2022). Quebec Votes. https://newsinteractives.cbc.ca/elections/quebec/2022/results/
Centre for Constitutional Studies. (2019). Amending Formula. https://www.constitutionalstudies.ca/2019/07/amending-formula/
Government of Canada. (2022). Section 33 – Notwithstanding clause. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html
Sheppard, R. (2023). Patriation of the Constitution. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution
Stevenson, V. (2019). Quebec government adopts controversial religious symbols bill. CBC News. https://www.cbc.ca/news/canada/montreal/quebec-government-adopts-controversial-religious-symbols-bill-1.5177587
The Canadian Encyclopedia. (2022). Notwithstanding Clause (Plain-Language Summary). https://www.thecanadianencyclopedia.ca/en/article/notwithstanding-clause-plain-language-summary