Use of notwithstanding clause 'normalized as legitimate option' by government: report

It's becoming more commonplace for provincial governments to consider and use the "notwithstanding clause," according to a new report.

The rise in the clause’s use started in 2018, after more than a decade of relative dormancy, as several provincial legislatures began using it with increasing frequency, says Lydia Miljan, professor of political science at the University of Windsor and a senior fellow of the Fraser Institute, which released the report.

"Essentially, the notwithstanding clause has become more normalized as provincial governments see it as a legitimate option when governing," she said.

The report highlights that premiers are increasingly willing to use the clause pre-emptively, not just in response to court decisions but as a means to push through controversial legislation. This has been evident in Quebec’s Bill 21 (banning religious symbols for public employees), Ontario’s attempts to impose contracts on teachers, and Alberta’s back-to-work legislation to end a teachers' strike.

“The assumption was that there would be a high political cost that would limit its use,” says Miljan.

Use of notwithstanding clause faces criticism

Under the notwithstanding clause, the federal or provincial government may expressly declare in an Act of Parliament or of the legislature that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Canadian Charter of Rights and Freedoms.

“Once invoked, the notwithstanding clause prevents a court from declaring that legislation covered by a section 33 declaration is of no force or effect, despite any inconsistency in the legislation with the rights or freedoms under the listed Charter sections,” according to the federal government. “A section 33 declaration is only valid for 5 years. After this time period, it ceases to have any effect unless it is re-enacted.”

However, the way it has been used in the past years may not have been how it was intended, says Miljan.

“Recall that the framers of the constitution intended a safety valve to override judicial activism and ensure parliamentary supremacy,” she says in the report titled Has the Notwithstanding Clause Become Less Controversial? “However... they had not envisioned it being used preemptively. They also believed it should be reserved for cases of genuine emergency and supported by robust justification.”

Alberta criticized for back-to-work legislation

Amnesty International recently criticized the government of Alberta’s use of the notwithstanding clause in the province’s legislation ordering striking teachers back to work.

“Alberta’s use of the notwithstanding clause continues an alarming trend of provincial governments putting political expediency ahead of people’s human rights. We urge the Alberta government to turn the tide by removing the notwithstanding clause from its education bill and commit to only advancing legislation that complies with the Charter and upholds Albertans’ human rights," said , Ketty Nivyabandi, secretary general of Amnesty International Canada’s English-speaking section.

The Fish, Food & Allied Workers-Unifor has also criticised the Alberta government.

“The Supreme Court of Canada has ruled that the right to strike and the right to free collective bargaining are constitutionally protected under Section 2(d) of the Canadian Charter of Rights and Freedoms. Bill 2 violates these rights, and the notwithstanding clause has allowed the provincial government to pass it anyway.

“When a government uses the notwithstanding clause to strip away those rights, it’s not just anti-worker — it’s anti-democratic. If even one government in Canada can suspend workers’ rights with the stroke of a pen, every worker is at risk.”

Calls for parameters around use of Charter override

The Canadian Civil Liberties Association (CCLA), is calling on Parliament and each provincial legislature to enact laws through which they will pledge to only use the Charter override within certain parameters.

Here is what these limits should look like, and why they are necessary, according to the group:

1. Lawmakers should not use the Charter override until after receiving a final decision from a court. Lawmakers should aim to enact laws that comply with the Charter, and should let courts review the constitutionality of these laws. “The public deserves to know if governments are infringing on their fundamental rights and freedoms,” says the group.
2. A supermajority should be required to invoke the Charter override. “This requirement would echo the severe consequences that flow from overriding Charter rights.”
3. Courts should have the explicit duty to review the use of the Charter override, so that egregious rights violations are not allowed to stand. “This means that, even if the Charter override has been used, courts could still review a law’s purpose when core rights and freedoms are at stake. Where that purpose is incompatible with our constitutional structure, the courts should be explicitly allowed to strike down the law. This would be the case when a law directly attacks a core fundamental right or freedom that existed well before the Charter was enacted,” says the group.