Former prime minister Pierre Trudeau once confided that agreeing to include the notwithstanding clause in the Canadian Charter of Rights and Freedoms was one of his greatest regrets. It was well-known that he had only done so reluctantly, at the insistence of premiers Sterling Lyon of Manitoba and Allan Blakeney of Saskatchewan, in order to obtain their support for his constitutional reform package in 1982. But although he did not like the idea, Trudeau felt it was reasonable to assume the clause would be used rarely, if ever, by any premiers. He also made it clear that he expected it would never be invoked by the federal government.
After all, as he had repeatedly stated during the lengthy federal-provincial negotiations, the rights enshrined in the Charter were the rights of individual Canadians. Nothing in the Charter limited federal or provincial jurisdiction, as some premiers had feared. Instead, it was the rights of citizens that were being protected from the actions of both levels of government. In effect this meant that, by invoking the notwithstanding clause (s.33), a government would be admitting that it had consciously decided to limit the rights of those Canadians living within its jurisdiction.
Trudeau thought no politician would dare to do that. Nor was he alone in making that assumption. The leading constitutional scholars of the day, such as Peter Hogg,[i] Gerard Laforest[ii] and Paul Weiler,[iii] all shared his view, as did the vast majority of politicians at the time. Roy McMurtry, Ontario’s Attorney General during the negotiations, considered it a “nuclear option” that would only be used “in the unlikely event of a decision of the courts that is clearly contrary to the public interest.” Jean Chretien, McMurtry’s federal counterpart as Justice Minister, agreed. It was “a safety valve to correct absurd situations … unlikely ever to be used except in non-controversial circumstances.”[iv]
It turns out that Trudeau and the experts were wrong. Since 1982 the notwithstanding clause – section 33 of the Charter, also known as the ‘override clause’ — has been invoked 27 times by provincial governments, almost always successfully. And, although it was rarely used in the early years, it has recently become far more commonplace, to the point where many legal experts argue that its usage will soon render many of the protected rights in the Charter irrelevant and further undermine the concept of judicial review.[v] Even more surprising is the fact that the override clause has increasingly been invoked by a province before a court decision has even found a piece of legislation to be in violation of the Charter, something that was definitely not expected by the drafters.[vi]
So what happened?
There are basically two factors that have driven the use of the notwithstanding clause by provincial premiers. The first, and perhaps less surprising, is the so-called Quebec factor. Simply put, Quebec nationalists have utilized section 33 to “protect” what they consider to be unique and essential elements of Quebec language and culture.
It will be recalled that the premier of Quebec during the constitutional negotiations of 1980-82 was the separatist leader of the Parti Quebecois, Rene Levesque. As he himself later admitted in his autobigography, Attendez que je me rappelle, Levesque had already decided in advance of the meetings that he would not agree to anything that was proposed, for fear that it might look like federalism worked and separation was not necessary. To that end he used the pretext of a missed phone call to create the now widely-believed myth of the ‘night of the long knives’ to justify leaving the meetings in a huff.
In the end Quebec was the only province not to sign the Constitution Act, 1982. Nevertheless, with the support of the other 9 provinces and all parties in the federal legislature, including the 67 MPs from Quebec, the Act came into force. Furious, Levesque promptly introduced blanket legislation applying the notwithstanding clause of the Charter to all provincial legislation as a form of political protest. This pre-emptive measure was not only unanticipated by experts but unnecessary, since almost none of the province’s legislation would have run afoul of the Charter.
However it was widely believed that Bill 101, (Quebec’s Charter of the French language), would be found to be in violation of the Charter if a court challenge were launched, and Levesque’s move to cover all legislation with the clause prevented that from happening, without having to single out that act specifically.
In short, “the Charter was seen as a menace to Quebec’s jurisdiction over its language and culture,”[vii] and that has been the driving force behind all subsequent usage of the clause in that province. Even Levesque’s successor as premier, the ostensibly federalist Liberal Robert Bourassa — who had not renewed the blanket use of s.33 after becoming premier in 1985 — promptly opted to invoke the clause in 1988 after a Supreme Court decision (Ford vs Quebec AG) struck down parts of Bill 101 as feared.
Most recently, under CAQ premier Francois Legault (a former PQ minister in the separatist governments of Lucien Bouchard and Bernard Landry), Quebec has pre-emptively invoked section 33 twice. Both times the stated purpose was to protect French language and culture: first, in 2019, to insulate An Act respecting the laicity of the State, and then in 2022 for An Act respecting French, the official and common language of Québec. In addition s33 was renewed for the secularity bill when the original five-year term expired.[viii]
As well-known Quebec lawyer and constitutional scholar Andre Binette has written, the use of s33 was not controversial in that province at the outset, nor has it become so more recently, precisely because the defence of the French language and culture is widely accepted by the general public as a legitimate political goal. “The bottom line is that Lévesque and later Bourassa normalized the use of the notwithstanding clause in both charters in Quebec and made it politically acceptable in its political culture, something that is alien to the rest of Canada, where the Canadian Charter is not perceived as an intrusion by another nation and has been celebrated wholeheartedly.”[ix]
Indeed, outside of Quebec the motivation for provincial governments to invoke the notwithstanding clause is an entirely different factor, namely, the desire to implement right-wing conservative policies that run counter to several Charter rights. Not surprisingly, then, we find that it is the provinces of Alberta, Saskatchewan and Ontario, under various right-wing, populist conservative governments, that have tried, and generally succeeded, in invoking the notwithstanding clause to implement such legislation that would otherwise have been struck down by the courts.
This trend began as a trickle, but is now rapidly becoming a stream. For example in Alberta, where conservative governments had long been in power, the government attempted to use the clause to implement its controversial Institutional Confinement and Sexual Sterilization Compensation Act in 1998. In 2000 it tried again, with amendments to its Marriage Act to define marriage as being exclusively between a man and a woman, in response to the federal government’s recently introduced same sex marriage legislation. In both cases, however, the plan had to be dropped when the courts ruled the province did not have jurisdiction on these issues. (It is also worth noting that there was substantial public opposition to the use of the clause in these cases, as the Charter’s popularity outside of Quebec was established from the moment of its adoption, and these moves were seen as extraordinary.)
It is no accident that the trickle became a stream after 2018, when right-wing populist governments were in place in Saskatchewan and Ontario as well as Alberta. For Saskatchewan these Charter concerns centred around sexual preference and transgender issues and the promotion of “parents’ rights” in the education system. In Ontario, somewhat bizarrely, the issues centred around provincial control of municipalities and electoral issues, with the Ford government first threatening to use the clause in 2018 to arbitrarily reduce the size of Toronto city council in the middle of municipal elections, and in 2021 to actually invoke the clause after a court ruling that limitations on third-party advertising during elections were a violation of the Charter right to freedom of expression. In 2022 Ford was at it again, threatening to use the clause to prevent unions from having the right to bargain.[x] Put another way, after a period of more than 30 years in which the clause essentially lay dormant, there have been 8 attempts or threats to use the clause in the past 7 years, 5 of which were successful.
Nor is this second motivating factor still limited to provincial premiers. Although Pierre Trudeau promised no Liberal federal government would ever invoke the clause, he obviously had only moral suasion, not authority, to influence future Conservative governments. An indication of things to come emerged almost immediately after Brian Mulroney’s Progressive Conservatives (PCs) formed the federal government in 1985. Mulroney was obliged to set up a special committee to examine the possible impact of the Charter’s section 15 (equality rights) on existing federal legislation. Why? Because the huge majority government he had just won included a very large contingent of right-wing MPs from the west who actually did not agree with many of the “so-called rights” found in the Charter, and especially in section 15, and Mulroney needed to appease them. Note that these same MPs later became the core of the new Reform Party after the 1993 election that devastated the PCs. And in the Reform Party’s first platform, the Blue Book, noteworthy proposals included making several changes to the Charter, including removing official languages, adding property rights and significantly limiting equality rights.[xi]
Note also that Prime Minister Stephen Harper, (originally a Reform MP himself before eventually taking over as leader of the new Conservative Party), was vocal in his dislike of the Charter and often attempted to downplay its significance.[xii] His frequent criticism of “judicial activism” was equally grounded in his dislike of the Charter and his frustration that many of his proposed social conservative policies, especially those related to immigration, drugs and other ‘tough on crime’ measures, were consistently found to be unconstitutional by the Supreme Court because of Charter violations. [xiii]
Which brings us to the views of the present-day federal Conservatives led by Pierre Poilievre, a dedicated populist and someone whose views are arguably far to the right of Mulroney and even Harper. In the recent federal election campaign Mr. Poilievre proudly declared that, if elected, he would be the first prime minister to invoke the override clause. Not surprisingly he stated it would be used to protect ‘tough on crime’ measures related to sentencing.
In a recent article columnist Andrew Coyne argued Poilievre’s pledge clearly revealed his underlying resentment of the Charter. “It’s not about the notwithstanding clause,” Coyne wrote, “it’s about the Charter…Forty years after it was passed, large sections of the conservative movement… remain as implacably opposed to it as ever.”[xiv] Coyne’s view was reinforced in a recent post by a former senior policy adviser to Poilievre, who wrote that “The last 43 years of Canadian constitutional law have been nothing but a disaster for the country,”[xv] because of the Charter.
Given that the Charter remains one of the most important symbols of Canadian identity for an overwhelming majority of Canadians, this hostility is not only concerning but potentially damaging to Canadian unity. Many Canadians have already lost trust in the efficacy of some democratic institutions. The possibility that the Charter may become a dead letter is a serious concern, one which the Carney government is now attempting to address through its intervention before the Supreme Court in the case of a legal challenge to Quebec’s Bill 21, the secularity bill banning the wearing of religious symbols across the public service. The government has taken great pains to stress that it is taking no position on the constitutionality of the bill itself, but instead is focusing exclusively on the use of the override clause, and argues that this use must be limited.
The federal argument is twofold. First, it maintains that even if the Court finds that the Quebec legislation violates Charter rights but must stand, because the province has the right to invoke the override clause in this instance, the Court should also have the right to issue a statement indicating which Charter right or rights have been violated. One might have thought that this would be self-evident, but it has not been the case to date. As a result, most Canadians do not have any real idea of the extent to which their provincial government has trampled on their rights.
The second argument the federal government has put forward is more contentious, namely that there should be a limit on the number of times that a province can re-invoke the clause, in order to prevent certain rights from being undermined indefinitely. It bases this argument on the temporary nature of the clause as demonstrated by the five-year sunset clause, and argues that repeated use of the clause would in effect render it permanent, which was never intended.
In response to the federal arguments, the conservative premiers of five provinces — Alberta, Saskatchewan, Ontario, Quebec and Nova Scotia – have now issued an open letter to the prime minister demanding that the federal government withdraw its intervention. Ironically, they argue that accepting the federal arguments would not only impose limits on the override clause but negatively affect national unity.[xvi]
Many constitutional experts support the federal position, and several have even stressed that this position also needs to be publicly supported in order for the Charter to have ongoing legitimacy. Public apathy or ignorance can only aid the premiers’ cause. Happily, a recent Nanos Research poll suggests the government is on the right track. Nationally a clear majority – 65% — said the clause shouldn’t ever be used (32%) or should only be able to be used once to override a right (33%) for the five-year period the Charter outlines. A further 15 per cent were unsure and only 21 per cent said they support unlimited use. Not surprisingly, support for unlimited use was highest in Quebec, but even there it was only at 33.5%, suggesting that any moves by the provincial government to invoke the clause for reasons unrelated to language and culture would not be supported. Interestingly, opposition to any use of the clause was highest in Ontario, at 36.5%, suggesting that premier Doug Ford’s frequent and frankly bizarre efforts may well have not only heightened awareness but brought the clause into disrepute.
At the end of the day, as with so many other significant political issues, it is up to federal and provincial politicians who are opposed to the increasingly cavalier use of the notwithstanding clause to communicate their reasoning to the general public. The future of all Canadians’ fundamental rights and freedoms depends on it.
[i] Peter W. Hogg, “A Comparison of the Bill of Rights and the Charter,” in Walter S. Tarnopolsky and Gérald‑A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary, 1982, p. 11.
[ii] Gérard V. La Forest, “The Canadian Charter of Rights and Freedoms: An Overview,” Canadian Bar Review, Vol. 61, 1983, p. 26.
[iii] Paul C. Weiler, “The Evolution of the Charter: A View from the Outside,” in Joseph Weiler and Robin Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms, 1986, p. 57.
[iv] https://www.theglobeandmail.com/opinion/article-notwithstanding-clause-nuclear-option-ottawa-proportionate-response/
[v] https://nationalmagazine.ca/en-ca/articles/law/rule-of-law/2022/the-lure-of-the-override-clause
[vi] For a detailed analysis of the history, intent and evolution of the clause, see https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E
[vii] https://policyoptions.irpp.org/2022/12/quebec-notwithstanding-levesque-legacy/
[viii] The inclusion of this five-year sunset clause for s.33 was another reason that Trudeau and other experts believed it would not be utilized, or at least would not be in force for long, since a province would have to keep re-introducing it, thereby repeatedly drawing attention to the rights being violated.
[ix] https://policyoptions.irpp.org/2022/12/quebec-notwithstanding-levesque-legacy/
[x] https://www.fairvote.ca/02/11/2022/notwithstanding-clause-again-first-past-the-post-makes-it-easy-for-leaders-to-abuse-their-power/
[xi] https://digitalcollections.ucalgary.ca/archive/Blue-Sheet-broadsheets-2R3BF1SSAEAEA.html
[xii] https://www.cbc.ca/news/politics/constitutional-divisions-keep-harper-from-celebrating-charter-1.1132860
[xiii] https://www.cbc.ca/news/politics/stephen-harper-mandatory-minimum-sentences-criminal-code-1.6637154
And https://thecanadianencyclopedia.ca/en/article/harper-v-the-judges
[xiv] https://www.theglobeandmail.com/opinion/article-its-not-about-the-notwithstanding-clause-its-about-the-charter/
[xv] Op cit.
[xvi] https://www.theglobeandmail.com/canada/article-conservative-premiers-call-on-ottawa-to-back-down-in-supreme-court/
