It’s time to start reining in the notwithstanding clause

Written By Alex Neve

If there is one favour that Doug Ford has done us over these past weeks of his government’s ham-fisted and bullying response to the threat of labour action by educational workers in Ontario, it is that more Canadians than ever are aware of and, dare I say, concerned about the notwithstanding clause in the Charter of Rights and Freedoms. We have also, importantly, seen some strong reaction from the federal government.

It is of course lamentable that one of the other recent notorious uses of the clause, by Francois Legault to undercut religious freedom and equality rights in Quebec, which has had devastating impact on many groups, particularly Muslim women, did not merit the same outrage.

Even though Doug Ford has stepped back -- or at least promised to step back -- from the brink of following through with his threat to invoke the clause, this is a crucial time for governments across the country, at federal, provincial and territorial levels, to take steps to rein in and restrict its potential use going forward.

First, some background. What is all the noise about anyway?

Section 33 is the Charter’s escape clause, and it is sweeping in its reach.

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Essentially this provision gives authority to Parliament or provincial and territorial legislatures to override, for periods of five years that can be renewed (also for five years at a time), the bulk of the most crucial human rights guarantees in the Charter. That includes the sections dealing with freedom of conscience and religion; freedom of thought, belief, opinion and expression, and freedom of the press and other media of communication; freedom of peaceful assembly; freedom of association; the right to life, liberty and security of the person; the protection against cruel and unusual treatment or punishment (which includes torture); and equality rights guarantees. 

It also extends to the entire range of due process and fair trial safeguards that are the heart of the country’s criminal justice system. If they chose to do so, governments could opt out of essential protections dealing with unreasonable search and seizure; arbitrary detention and imprisonment; the right to be informed promptly of reasons for arrest or detention; the right to counsel when arrested or detained; access to habeas corpus to challenge the lawfulness of detention (which has of course been established in law for over one thousand years, dating back to the Magna Carta in 1215); being informed without unreasonable delay of the specific offence when criminally charged; being tried within a reasonable time; not being forced to take the stand when criminally accused; the presumption of innocence; access to reasonable bail; choice of trial by jury for serious criminal offences, bans on retroactive criminal offences, double jeopardy; the right to benefit from a lesser punishment if reduced by law before sentencing; provisions with respect to self-crimination; and the right to have an interpreter in any legal proceedings, including for people who are deaf.

Safe to say, there is nothing trivial about what is at stake.  Section 33 has the potential to absolutely gut the Charter of meaning and impact and leave the majority of its most important human rights promises vulnerable to the prevailing political winds of the day.

It is important to note as well that the Charter also has another overarching provision recognizing that governments might be justified in limiting rights.  That comes at the very beginning, in section 1, allowing governments to set such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

Let those words sit with you for a moment. Given what section 1 already offers, what more was needed? Section 33 quite intentionally seems to be about limits on rights that are not reasonable, and cannot be demonstrably justified in a free and democratic society.  Section 33 is for the unreasonable, nonjustifiable limits that are inconsistent with freedom and democracy. Rather chilling.

It is important to note, however, that there was another nothwithstanding clause agreed to by the Charter’s drafters and negotiators as well, this time for human rights good. That is found in section 28, and shores up the guarantee of equality between the sexes: “Notwithstanding anything else in this Charter, the rights and freedoms in it are guaranteed equally to male and female persons.” So, while the broad equality guarantee in section 15 can be suspended by the more notorious notwithstanding clause in section 33, the specific guarantee of equality between “male and female persons” is saved by its own notwithstanding provision. Notwithstanding the notwithstanding clause, gender equality prevails.

Second, what were they thinking?

Forty years after the Charter was adopted it is easy to castigate the politicians of the day who drafted, negotiated and agreed to a constitutional human rights document that included a provision giving governments the option of ignoring most of the stirring promises they had just made.

Much has been said and written about section 33’s genesis and the intentions and understandings of those who proposed it be included in the Charter.  It came late in the process and without a doubt was, at the time, the compromise that sealed the deal, bringing a number of provinces on board.  Jean Chrétien, who was the federal justice minister at the time and played a central role in the drafting process, has often remarked that without section 33 the Charter would likely not have been adopted.

That said, the general consensus is that those who were at the negotiating table at the time imagined the notwithstanding clause to be a power that would be used only in the most extraordinary circumstances. They understood that it was fundamentally antithetical to the very nature and purpose of the Charter, and its use needed therefore to be exceptionally limited and only as an unavoidable option of last resort. So it is said.

Four decades later, very much including the past four years, that has not at all been the clause’s history.

Third, how does section 33 square with Canada’s international human rights obligations?

Human rights protections in Canada do not only originate nationally, the country is bound by international human rights obligations, going back decades before the Charter was even imagined. And it is important to note that those global standards also recognize that in meeting those human rights responsibilities states may legitimately need some leeway when faced with competing demands and crisis situations.

But that international human rights framework, which various Canadian governments have played a role in creating and have then ratified or acceded to the resulting obligations, does not at all envision the carte blanche approach that is the notwithstanding clause.

Some rights are written in ways that recognize a sense of balancing and limitations in the very definition of the right.  That is the case with the freedoms of expression, assembly and association, for example, in the International Covenant on Civil and Political Rights (ICCPR), which allow limits to be imposed when “necessary” to respect the rights or reputations of other people or to protect national security, public order, public health or morals.  There has been a great deal of international law over the decades making it clear how carefully any such limits can be imposed and that it must be done with minimal impairment of the right in question.

In certain respects, the balancing considerations in play here are reflective of the approach taken to tests that have developed under section 1 of the Charter, allowing limits on rights when demonstrably justified in a free and democratic society, and section 7’s analysis of “principles of fundamental justice” relevant to assessing whether the rights to life, liberty and security of the person have been violated.

Other provisions in the ICCPR are drafted in absolute terms, but might be subject to what is known as the derogation provision in article 4.  This allows states to suspend the application of some, though not all, rights in the Covenant when “faced with a public emergency that threatens the life of a nation”.  Not only does that set a high bar of only the most exceptional and truly perilous situations of crisis, article 4 also lays out that the derogation can only be to the “extent strictly required by the exigencies of the situation”, cannot be inconsistent with other international obligations and must not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”  Clearly a much more constrained power of suspending human rights protections than the wide-open door provided by the notwithstanding clause.  It would be impossible to argue that any of the instances in which section 33 has been invoked come even remotely close to being a public emergency that “threatens the life of a nation.”

And it is important to note that article 4 of the ICCPR also sets a non-negotiable bottom line when it comes to suspending human rights.  There are 7 human rights that can never be suspended or restricted, even when a public emergency threatens the life of the nation.  Those are the right to life, the prohibitions of torture and of slavery and servitude, protections against being imprisoned for failure to fulfill a contract, restrictions on retroactive offences, the right to benefit from lighter penalties established by law, the right to be recognized as a person before the law, and the freedom of thought, conscience and religion.  Alongside that of course is the requirement that derogation never be discriminatory, effectively meaning that protections against discrimination are also non-derogable. 

Not all of these non-derogable rights have a direct equivalent in the Charter.  But some of the most notable rights that unequivocally protected in the ICCPR, such as equality guarantees, the right to life, protection against torture, restrictions on retroactive offences, and the freedom of thought, conscience and religion, are all expressly open to being abrogated by the notwithstanding clause.

Four, how has it been going?

So if we accept that section 33 found its way into the Charter as a reluctant last minute compromise, and take some consolation from the understanding at the time that it would be used exceptionally and extraordinarily, is that how things have gone over the forty years since?

It is bit fuzzy to quantify the notwithstanding clause’s actual usage, as the accounts are sometimes muddled with instances when there was talk about using it that didn’t materialize, or legislation that was drafted, including the clause, which was never tabled, or was tabled and defeated, or was adopted but never entered into force.  But a rough account suggests it has been seriously proposed, to the point of finding its way into a Bill, on at least 26 occasions. That includes the infamous early invocation of the clause in Quebec between 1982-1985, applicable to all Quebec legislation, including retroactively.

Notably, it has never been invoked by the federal government.  Five provinces – Alberta, New Brunswick, Ontario, Quebec and Saskatchewan – and one territorial government, the Yukon, have turned to section 33.  Overwhelmingly it has been used most frequently – 17 of the 26 instances – in Quebec.  And there appear to have been two time periods during which use of the clause has been most active.  Between 1982 and 1992 it was used 16 times, and more recently, between 2018 and 2022 it has been used 7 times.  Notably it was not invoked at all between 2005 and 2018.

Perhaps surprisingly the first government to turn to the notwithstanding clause was the Yukon, with respect to obscure provisions dealing with appointments of committee members under the territory’s Land Planning and Development Act. While the legislation was adopted it did not enter into force.  

Also worth noting that it has been used both reactively, in response to a court ruling, and proactively, in an attempt to pre-empt any Charter challenge in court.

When used, there have been a mix of outcomes, as in some instances the legislation was not adopted or was withdrawn, perhaps because it proved unnecessary due to a subsequent judicial ruling or political development; while in other instances it has indeed had the full force and effect of being the law of the land.

Beyond the Yukon’s obscure invocation, what are some of the extraordinary circumstances that governments have felt justified resort to this exceptional power?

It would be a stretch to conclude that any of those examples amount to extraordinary, exceptional situations of last resort in which the life of the province was threatened. But such is the notwithstanding clause and democracy in many parts of Canada.  There are no such express restrictions on its use and so it has been used inconsistently, arbitrarily and, more often than not, as a matter of political expediency rather than an arguably understandable effort to avert a grave public emergency.

Five, should we be concerned?

This is not just fodder for debates among lawyers and constitutional scholars.  There is a great deal at stake, and we should indeed all be deeply concerned. 

The notwithstanding clause always risked eviscerating the Charter of its full force and effect.  It offers an obvious way for government to pull the rug out from under all the great promises.  That is of course counter-intuitive when it comes to any serious effort to shore up human rights protection.   

And rug pulling is precisely what has happened.  Not always, obviously, as the past forty years are full of thousands of examples of tremendously consequential cases in which courts have struck down laws, polices and decisions of governments because they have violated the Charter. Many of those rulings have led to transformational change in Canada.  But the clause has been used with enough frequency, and often on such spurious and unconvincing grounds, to be deeply troubling.

That said, even though this is a forty-year story, its repeated use – five times now – in the past four years, by Canada’s two largest provinces, has been deeply alarming.  Francois Legault and Doug Ford have made it clear that they view the Charter, not so much as the last word on whether they are respecting human rights in their respective provinces, but as an inconvenience to be pushed aside when it stands in the way of what they want to do.

And they are increasingly doing so before the Courts themselves have even had a chance to wade in. In constitutional circles there is often talk of a dialogue between the courts and governments about the Charter.  Governments pass a law. It is challenged in court.  Judges weigh in and rule on whether it does or does not conform to the Charter. If judges have highlighted Charter violations, governments then respond.  Existing laws are repealed or amended as needed. New laws are drafted.  And on it goes.  It is a fluid process that ensures the courts, parliament and legislatures, and governments are all actively engaged in interpreting, applying and respecting the Charter. They all have an important role to play, and they play it.  But that all collapses when a government kicks the Charter out of the room before the conversation even gets underway.

In all of this, there appears to be a sense of normalization about the notwithstanding clause that is settling in.  Defenders of the clause often push back by pointing out that the check and balance on its use comes at the ballot box, the next time the offending government is up for election.  Ford and Legault have both recently faced the electorate and safe to say this issue received next to no attention during those campaigns and had no impact on the outcome.  And that is not entirely a surprise, we have long known that protecting rights cannot and should not be left to the will of the majority, as they are almost always the ones least impacted by the violations.

Normalized use of the notwithstanding clause, therefore, is not likely to become a major concern for most people in Canada unless and until it is used to take away their rights.  And that is exactly the point.  Human rights guarantees are meant to avoid that happening unless, of course, they are stripped of any real meaning. 

A word about international implications.  When it comes to human rights our world is in a sorry state, to put it mildly.  Ukraine, Yemen, Tigray, Israel/Palestine and Syria come immediately to mind. The continuing failure to meaningfully address genocide against the Rohingya in Myanmar and the Uyghurs in China is a disgrace. The implications of the rise of hate-propagating politicians around the world promoting racism, misogyny, homophobia, Islamophobia and antisemitism are staggering. And action to tackle the global existential human rights catastrophe that is the climate crisis continues to be too little too late.

If not more than ever, certainly as much as ever, we so desperately need to shore up and strengthen human rights protection internationally.   And Canada is very much in that game, working at the UN, other multilateral settings and in our bilateral relationships, to address human rights violations and advance human rights reform.

But all the diplomacy in the world is readily undermined if action on the homefront points in the opposite direction. Scattered and dubious resort to a human rights escape clause in Canada sends precisely the wrong signal to the rest of the world about the solemn responsibility governments have to respect human rights, and to even stick to those obligations when it is inconvenient or expensive to do so. 

Finally, what should we do next?

By now it should be abundantly clear that I am deeply opposed to the notwithstanding clause, both its presence in the Charter and the manner in which it has been used. So the most obvious proposal to make would clearly be for it to be scrapped.

Not so easy, as constitutional reform is a near impossibility in Canada.  It would require the agreement of the House of Commons, the Senate, and a minimum of seven provinces constituting at least half the population of Canada. Among many challenges in reaching that high bar, that would mean that either Ontario or Quebec would have to be onboard, a highly unlikely prospect given their enthusiasm for using the clause as of late.  Maybe a day will come, but that day is not now.

But it doesn’t stop there. It isn’t a matter of: amend the Constitution or nothing.  There are a range of other possibilities. I’ll focus on options open to the federal government. It is notable, and commendable, that there has been no federal government use of the notwithstanding clause to date. Notably that extends across five Liberal and three Conservative prime ministers.  So let’s build on that record. Similar recommendations could be made at provincial and territorial level.

  • Each federal political party could pass a resolution committing to never use the notwithstanding clause. 

  • Legislation could be passed barring the use of the notwithstanding clause by the federal government.

  • If an outright ban can’t be agreed by Parliament, legislation could be passed setting more onerous procedural requirements with respect to the use of section 33, such as:

    • the need for a unanimous vote or at least 2/3 of all Members of Parliament;

    • reducing the permissible time limit for its use from five years to one year;

    • instituting a bar on it being used proactively in advance of court rulings;

    • limiting the number of Charter provisions that are potentially subject to the notwithstanding clause, including at a minimum removing the life, liberty and security of the person protections in section 7, the prohibition of cruel and unusual treatment or punishment in section 12, and the equality rights guarantees in section 15 from its scope;

    • reconfirming that gender equality does not come within the scope of section 33, by virtue of section 28’s clear affirmation that “notwithstanding” any other provision, the rights and freedoms in the Charter are “guaranteed equally to male and female persons”;

    • developing criteria, consistent with Canada’s international human rights obligations, detailing the types of truly exceptional and extraordinary circumstances under which the clause could be invoked; and

    • establishing independent oversight and public reporting whenever it is used.

  • Comprehensive information about the use of the notwithstanding clause by any government in Canada could be compiled and made publicly accessible by the federal government, and be updated regularly.

  • The issue of how to constrain, if not outright end, use of the clause could be put on the agenda of an upcoming meeting of federal, provincial and territorial ministers of justice.

  • An experts’ roundtable could be convened by the federal government to review options and strategies for limiting and eventually revoking the notwithstanding clause.

Of course many of these proposals, especially those that involve passing any federal laws or policies, would always be vulnerable to a subsequent government weakening or repealing those very laws and policies, including through resort to the notwithstanding clause if necessary. But it would at least move the dial.  It would impose one more set of barriers to invoking section 33. And it would help broaden public understanding about the serious implications of using the clause and deepen public expectations that governments should use it only as an exceptional last resort.

The likelihood, as is often the case, is that the moment has passed, and the agitation and concern about Doug Ford’s resort to section 33 will dissipate.  Crisis averted.  This time let’s not let that happen.  Let’s keep the discussion going and ensure that we start to rein it in, however incrementally and gradually, before the next government decides once again casually and repressively to pull it out of their back pocket.

Alex Neve
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