Do We Need to Reconsider the Usefulness of the Notwithstanding Clause?

The notwithstanding clause is having a moment in the spotlight. 

Following the actions of the Ford government in Ontario over the last few weeks, many Canadians are suddenly finding this obscure portion of the Canadian Charter of Rights and Freedoms on their minds. 

Rarely used, the notwithstanding clause is somewhat shrouded in mystery. After all, it has only been invoked a handful of times in Canadian history. 

Some examples include in 1986, when it was used to settle a dispute over the freedom of association and unions in Saskatchewan, and in 2000, when Alberta brought it into force in relation to same-sex marriage rights. 

Its most recent planned use—of course—has been widely publicized. This time, it happened in Ontario with respect to the controversial Better Local Government Act.  

This act sought to unilaterally alter electoral boundaries in the middle of a political campaign. After the Superior Court found the act to be in violation of charter rights under s. 2(b), Premier Doug Ford was going to invoke the notwithstanding clause to override the court’s ruling and carried on with his government’s plan. 

This would have marked the first time that this elusive clause had been used in Ontario, and it created a media frenzy, which left many people asking whether or not the notwithstanding clause should be used at all. The court ruling prompting this was overturned.

The notwithstanding clause is formally known as section 33 of the Constitution Act, 1982. Simply speaking, section 33 allows Parliament and provincial or territorial legislatures to override certain parts of the charter. 

It does this by declaring that one of its laws, or portions thereof, applies temporarily, which nullifies the opportunity for a judicial review of the charter-infringing action. This allows the action to take place unhindered and unmitigated for a particular period of time. 

But there are some limits to its scope.

The notwithstanding clause cannot be used in relation to mobility rights, democratic rights, or language rights. It is also generally limited to a period of five years, although it can be extended in certain circumstances. These limits are meant to act as a procedural safeguard against the potentially tyrannical application of its powers. 

With respect to its history, it may be surprising to learn that, in spite of its seemingly immoveable nature, the notwithstanding clause came about as the result of compromise. 

The clause was created in response to provincial governments concerns over the implementation of the charter in the 1980s. At that time, the provinces were primarily concerned that the charter would devoid its elected officials of power, effectively shifting law-making ability to the nonelected judiciary. This did not sit well with them, and they insisted on having more leverage to pass laws.

The notwithstanding clause was born out of the subsequent negotiations between the provincial and federal governments and was ultimately included in what is now known as the "Kitchen Accord”. It was seemingly added in reluctance by the author of charter, former prime minister Pierre Trudeau.  

It is ironic that our current Liberal government, headed by none other than Justin Trudeau, finds itself at odds with revisiting how this section of the charter is being used. 

NDP MP Murray Rankin recently brought a motion to examine the notwithstanding clause before the House of Commons standing committee on justice and human rights, which was subsequently defeated by the Liberals. 

But the issue may very well be unavoidable. It is only a matter of time before our government will need to sit down and seriously examine the modern-day application of this clause to determine whether or not there remains a place for it, more than 30 years after its creation.

Whether you are in favour of this controversial clause or not, there is no denying that the notwithstanding clause is a uniquely Canadian invention, born out of compromise to be used sparingly in only the most dire of political circumstances.

Let’s just hope our elected officials are wise enough to keep it that way.

You can also read this article in The Georgia Straight.

Sarah Leamon