An obscure clause in Canada’s charter sparks furious debates over rights

The notwithstanding clause can be invoked to pass controversial laws that override the rights of citizens

At the height of a bitter pay dispute with Ontario education workers earlier this month, the provincial premier, Doug Ford, passed a law that barred employees from striking and imposed a multi-year contract on them – breaching their constitutional rights.

Amid mounting public backlash and the prospect of a general strike, Ford quickly retreated, announcing his government would immediately rescind the bill.

In neighbouring Quebec, the provincial government is in court defending legislation barring public employees such as teachers and lawyers from wearing religious symbols while at work – a law that disproportionately affects religious minorities. Rather than backing down from controversy over the law, however, the provincial premier, François Legault, recently won re-election, in part over its popularity.

The two governments’ ability to strip away seemingly fundamental rights comes from a controversial – and uniquely Canadian – constitutional mechanism, known as the “notwithstanding clause”.

It’s been called both an “escape hatch” and a “nuclear bomb”. But with each use of the clause, Canada endures another debate over whether it should have a place in the constitution – or if its power should be blunted.

A 2015 survey found that 93% of citizens felt the country’s Charter of Rights and Freedoms, similar to the US Bill of Rights, was the most important symbol of Canada, beating ice hockey, the Royal Canadian Mounted Police, the maple leaf and the national anthem.

The 40-year-old Charter protects a range of rights – democratic, mobility, legal, equality and language rights – and has served as a template for dozens of nations.

And yet when the then prime minister, Pierre Trudeau, set out to replace the British North America Act with a constitution in the 1980s, the decision kicked off a power struggle between the provinces and federal government.

Provinces feared that under a new constitution, courts would become too powerful, undermining the authority of the elected government. A compromise was hashed out: in cases when a government – provincial or federal – felt that the courts had overstepped, they could invoke the clause to override certain Charter rights of citizens.

It meant that some fundamental rights, including protections of religious freedom, equality and speech, could be suspended.

But the federal government put limits on this power: voting, as well as language rights, were untouchable, ensuring Canadians could remove a government if they wanted. A government could only invoke the clause for five years. Before they could renew it, they would first have to face voters.

“Even without using the notwithstanding clause, governments have a significant ability to defend their laws if they can show why it is a ‘reasonable and proportionate’ limit on rights,” said Robert Leckey, dean at McGill’s law school. “And in reaching for the notwithstanding clause, governments are really just saying ‘We want to pass a law that wouldn’t be upheld by the courts as a reasonable and proportionate limit on rights.’”

All the provinces – except for Quebec – approved the measures and the constitution was ratified in 1982.

In the years since, the clause has rarely been invoked.

But in 2019, Quebec passed Bill 21, barring its public employees from wearing religious symbols at work. The province pre-emptively invoked the clause, implicitly recognizing that the law breached the Charter.

Three years later, Quebec passed Bill 96, which sought to strengthen French language protections – again invoking the notwithstanding clause, in an apparent implicit recognition that the pursuit of language and cultural protections is at odds with Canada’s charter.

Meanwhile, in Ontario, the premier, Doug Ford, has used the clause – or threatened to – three times. Before Ford, no premier had ever invoked the notwithstanding clause.

The pre-emptive use of the clause sends a message: “‘We’re a majority government, we represent our voters and we don’t want to be slowed down or bothered by having to explain what we’re doing in court,’” said Leckey. “The worry is that if it’s used often, people are a little less surprised each time.”

While Ford quickly retreated on Bill 28, Quebec’s national assembly has shown little interest in scaling back its legislation, highlighting the more troubling implications of the clause, said Sonia Lawrence, a professor of constitutional law at Toronto’s Osgoode Hall law school.

“By using the notwithstanding clause, what you have is discrimination against minorities already facing discrimination. And this is where we might expect the court to be the most muscular and pushing back against a government, especially since it’s a place where we don’t expect that the broader electorate will necessarily speak up for those minorities,” she said.

Quebec’s court of appeal is hearing a case over concerns that the notwithstanding clause was misapplied in Bill 21, but the broad powers granted by the clause make it difficult for critics or courts to limit a government’s ability to pass controversial laws.

Amending the clause would require reopening debate over the constitution, a task many fear would result in a national a crisis, with provinces demanding new concessions or powers from the federal government.

But Lawrence said that despite its shortcomings in protecting minority rights, the notwithstanding clause has also prevented Canada’s top court from accusations of becoming an overtly partisan institution.

Unlike the United States where “the court has essentially been captured by political interests” and judges’ interpretations of law can shape public policy – as for example in the supreme court’s decision to overturn decades of precedent on abortion – governments in Canada can easily undo a controversial high court ruling.

“When rights are seen as absolute, there’s also a scenario in which if you think the court has wrongly interpreted the scope of a right, you’re left with very little that you can do,” said Lawrence. “That hasn’t happened to the same degree in Canada.”

Public outrage over the use of the notwithstanding clause – and surprise that rights can be taken away so easily – means Canada needs to have better ability to adjudicate when is the right time to use it, said Leckey.

“The taboo that it can never be used is probably not helpful. There really are circumstances that you might think it could be used, especially when it comes to a very controversial judgment,” he said. “But what I don’t think we’ve developed, as a political culture, the sense of when it’s legitimate to use the clause and an ability to evaluate how legislatures have justified it.”

Much of the debate, frustration and uncertainty around the clause is also a function of the constitution’s relative youth, said Lawrence.

“If we expect our charter to last, we have to also accept that we actually don’t know what kind of situations it’s going to have to deal with in the future.”

• This article was amended on 21 November 2022 to make it clear that Quebec’s ban on public employees wearing religious symbols applied only to when they were working.


Leyland Cecco in Toronto

The GuardianTramp

Related Content

Article image
Pioneer or squatter? YouTuber’s cabin sparks fight over Canada’s wilderness
Matty Clarke headed up the Yukon River seeking a goldmine and a life off-grid – but the government says he’s there illegally

Leyland Cecco in Toronto

27, Mar, 2022 @10:30 AM

Article image
Canada’s intelligence service: theft of information is 'potentially devastating'
Theft of classified information by a senior intelligence officer could ‘cause grave injury to Canada’s national interests’

Leyland Cecco in Toronto and Ben Doherty in Sydney

17, Sep, 2019 @4:59 PM

Article image
Mounties’ missteps creating crisis of confidence in Canada’s police
The Royal Canadian Mounted Police, under fire for its response to recent mass killings, is facing calls for a shake-up

Leyland Cecco in Toronto

22, Sep, 2022 @10:00 AM

Article image
Trudeau nominates Indigenous woman to Canada’s supreme court
Michelle O’Bonsawin’s appointment to the court would address longstanding criticism over lack of First Nations representation

Leyland Cecco in Toronto

19, Aug, 2022 @6:22 PM

Article image
Deadly British Columbia heatwave sows wildfires across Canada’s west
Residents recovering from record-breaking temperatures face a new threat, with more than 100 fires burning

Jesse Winter in Vancouver

02, Jul, 2021 @5:25 PM

Article image
Canada’s largest grocer to freeze prices amid profiteering accusations
Loblaw Companies says it will lock in prices of ‘no name’ amid looming parliamentary investigation into food retail industry

Leyland Cecco in Toronto

20, Oct, 2022 @9:30 AM

Article image
Is the US’s gun problem becoming Canada’s gun problem?
Relatively strict laws help keep firearms violence well below US levels but advocates say ‘there’s much more we could be doing’

Leyland Cecco in Toronto

29, May, 2022 @10:10 AM

Article image
Cruelty of Canada’s residential schools ‘unimaginable’, governor general says
Mary Simon, first Indigenous person to hold post, attends ceremony at Kamloops school to honor thousands of children who died

Leyland Cecco in Toronto

24, May, 2022 @4:00 PM

Article image
Delays hamper Canada’s bid to resettle Ukrainians fleeing war
Bureaucratic issues in Ottawa mean new arrivals will likely have to rely on Canadians’ generosity to get settled

Leyland Ceccoin Toronto

15, Mar, 2022 @9:00 AM

Article image
Canada’s Covid protests highlight rise of rightwing populist movements
Stores and vaccine clinics remain closed in Ottawa as protesters refuse to leave while federal Conservative leader faces criticism

Leyland Cecco in Toronto

01, Feb, 2022 @6:02 PM