The Resurgence of the Notwithstanding Clause

"The Resurgence of the Notwithstanding Clause" (2020) IACL-AIDC Democracy 2020, 16 November 2020

The product of a last minute political compromise between the federal government of Canada and some provinces as a condition for adopting a constitutional bill of rights, s. 33 of the Canadian Charter of Rights and Freedoms 1982 allows the federal Parliament or a provincial legislature to enact an override of certain rights guaranteed by the Charter. By and large, use of the ‘notwithstanding clause’ has been rare. However, over the past couple of years, resort to s. 33 has picked up again. Overrides have been passed or introduced in bills: to fund non-Catholic students at Catholic schools in Saskatchewan; to reduce the number of Toronto City wards and councilors by half; to require all children in New Brunswick to receive immunization for prescribed diseases; to prohibit Québec public sector employees ‘in a position of authority… from wearing religious symbols in the exercise of their functions’. The current challenge of the Québec law will test the courts’ willingness to circumvent the application of s. 33 based on controversial constitutional doctrines such as unwritten rights or the living tree. In academic circles, legal theorists are also pondering the democratic legitimacy of the use of s. 33 and whether (or the extent to which) that ought to guide the legality of legislative overrides. More generally, the recent uses of s. 33, along with a resurgence of minority governments across the country suggest that Canada does not escape a current global movement of greater divisions, even polarization, over public issues in many democracies. The end result of this latest round of power struggle between the government and the judiciary should recast the longstanding role of Canadian courts as the self-appointed guardians of the Constitution and determine their real ability to act as a countermajoritarian force in a constitutional democracy.

This content has been updated on 26 May 2023 at 12 h 50 min.