It’s time to do something about the notwithstanding clause*

As the Ontario government’s labour dispute with educational workers heads toward likely resolution, there is a risk that Doug Ford’s bullying resort to the notwithstanding clause in section 33 of the Charter of Rights, to override collective bargaining rights, will be forgotten. 

That cannot be allowed to happen.

Yet already this is in the rearview mirror. The offending legislation, the Keeping Students in Class Act, has been entirely erased. The subsequent Keeping Students in Class Repeal Act, declares that earlier law is “deemed for all purposes never to have been in force.”

Crisis averted? Only until the next time. The Ford government has used or threatened to use the notwithstanding clause three times in four years.  The eight Ontario premiers – four Conservative, three Liberal and one NDP – who preceded him following the Charter’s adoption in 1982 never took that step.

And the clause remains in force with respect to two pieces of legislation in Quebec, one dealing with the right of certain public servants to wear religious symbols, the other with language rights. This use of section 33 five times by the premiers of Canada’s two largest provinces in four years is deeply troubling.

The notwithstanding clause was an unfortunate compromise in the negotiations leading to the Charter of Rights.  While negotiators intended it to be used in only the most exceptional circumstances, that has not been the case. The six provincial and territorial governments that have used or nearly used the clause – the Yukon, Quebec, Alberta, Saskatchewan, Ontario and New Brunswick – have largely done so for political expediency.

The notwithstanding clause’s broad sweep clearly violates Canada’s international human rights obligations. The International Covenant on Civil and Political Rights, ratified by Canada in 1976, makes is clear that some (not all) rights can be temporarily suspended, but only when there is a “public emergency which threatens the life of the nation”. Section 33’s use has never come remotely close to that threshold.

So, do we simply grimace when governments pull it out, responding as best we can through legal challenges and advocacy campaigns? Or should we not proactively explore options for reining it in? 

Repealing it is a bridge too far. Amending the constitution requires the agreement of the House of Commons, the Senate, and a minimum of seven provinces constituting at least half the population of Canada. Either Ontario or Quebec would have to be onboard, an unlikely prospect given their recent enthusiasm for the clause.

What about other options?

Legislation could be passed by federal, provincial and territorial governments barring the use of the notwithstanding clause outright.

If that is not feasible, legislation could set more onerous procedural limits on how it is used.  Provincial Liberals in Ontario have recently tabled such a bill, the Notwithstanding Clause Limitation Act.  Gib Van Ert and Amir Attaran have drafted a recent proposal as well.

A range of restrictions and safeguards could be legislated. 

That might include the need for a unanimous vote or at least 2/3 of all members of Parliament or the legislature; reducing the permissible time limit for its use from five years to one year; and instituting a bar on using it preemptively before court rulings.

Certain Charter provisions should be exempted from the notwithstanding clause’s scope, at a minimum the life, liberty and security of the person protections in section 7, prohibition of cruel and unusual treatment or punishment in section 12, and the equality rights guarantee in section 15.

It should be expressly confirmed that violating gender equality is beyond section 33’s reach, by virtue of the Charter’s other “notwithstanding” clause in section 28, affirming that the rights and freedoms in the Charter are “guaranteed equally to male and female persons”.

Legislation should set criteria detailing the types of extraordinary circumstances under which the clause could be invoked, consistent with Canada’s international human rights obligations.  And a mechanism for independent oversight and public reporting whenever section 33 is used could be instituted.

The issue of how to constrain, if not outright end, use of the notwithstanding clause should be on the agenda of upcoming meetings of federal, provincial and territorial ministers of justice.  A parallel experts’ roundtable could be convened to review options for limiting and eventually revoking section 33.

Legislation imposing limits might be subsequently repealed. But it would establish expectations that the Charter of Rights means something, must comply with international law, and can only be set aside as an extreme measure of last resort.

* Published as an opinion piece in the Hill Times on December 5, 2022