Outlined in section 33 of Canada’s Charter of Rights and Freedoms, the notwithstanding clause allows federal or provincial governments to suspend most rights contained in the charter for a period of up to five years and renew the set-aside for future periods of five years. Since the 1982 inception of the charter, which forms the first part of Canada’s constitution, various provincial governments have used the notwithstanding clause a total of approximately two dozen times, mostly Quebec in the 1980s.
In Alberta, the government recently invoked the clause in the legislation that forced an end to the teachers’ strike and imposed a unilateral settlement on teachers. The government then used the clause again in legislation regarding gender reassignment surgery, pronoun consent in schools and transgender sports participation.
For more insight on the notwithstanding clause and its recent use in Alberta, the ATA News spoke to Professor Wayne MacKay of Dalhousie University, a Member of the Order of Canada since 2006 and one of Canada’s foremost constitutional law experts.
Q. How did the notwithstanding clause come to be included in Canada’s Charter of Rights and Freedoms?
A. The notwithstanding clause was actually a vital part of getting the charter to pass. The federal government was very much promoting charter rights and was threatening to proceed unilaterally to get the charter through the British parliament. The provinces didn’t want to give up final authority to the courts on significant policy decisions, so the notwithstanding clause was included in the charter to get enough provinces on board. The charter [was passed] largely because the feds agreed to have the notwithstanding clause in the constitution.
Q. How was the clause intended to be used?
A. Certainly at the federal level, and I think even at the provincial level, there was a pretty clear understanding that the use of the notwithstanding clause would be a rather rare occurrence—a provincial or federal government would use the clause only in really significant cases. In some of the early cases, that sort of played out.
Q. The Alberta government has invoked the notwithstanding clause in two pieces of legislation introduced this fall. What is the significance of this?
A. It’s very significant for a number of reasons. One of them is that there has been an increasing use of the notwithstanding clause by provinces throughout Canada in the last few years, to the point that many charter supporters, and people generally, are expressing concern that it is being overused and that it should be revisited.
Another reason it is significant is that, in relation to collective bargaining, it’s quite clear that in the last 10 or 15 years, the court has recognized that the scope of collective bargaining rights protected by the right to freedom of association is quite large. So, the use of the clause pretty clearly limits rights that have been found to be in the charter.
A third reason that there’s some significance, regarding transgender rights and issues of pronouns and parental notification, is they’re dealing with current and very significant social issues and making the statement that the province should have the final say, not the court.
In that regard, it really clearly raises the core question: when you have an important policy decision, what’s required for a province to set aside our charter of rights? Unlike in the early days, I think many Canadians now regard the charter as part of our core identity.
Q. Is the Alberta government’s use of the clause in line with the clause’s original intent?
A. There’s some ways in which it fits, but I think many more ways in which it doesn’t fit with the original intent. It’s being used in a way that doesn’t go to the core identity of the province, such as language protection in Quebec, for example. Those core identity issues were the kind of thing I think they had in mind when they included the notwithstanding clause in the charter.
It has been used in Alberta on issues that are important to the province, so in that sense it does fit. But Canada has become a country that really values equality and equal protection of people without human rights violations—whether it’s transgender, disability, sexual identity rights—and in that regard, the use of the clause on a frequent basis really detracts from our core charter protections.
Q. Given that the notwithstanding clause exists within the charter, some may argue that it’s a legitimate tool for governments to use. What are your thoughts on that?
A. An excellent point, and to be fair, I’ve come down heavily on the concerns about it, but there are a lot of legitimate arguments that the provinces are making about using it. It’s part of the constitution. It was a vital part of the constitution; otherwise, the provinces would not have gone along with it. Therefore, why wouldn’t you use a relatively clearly stated provision? The only arguments against using it, I think, are situations that raise the question: does it go too far and start interfering with our core identity and our basic rights?
Q. We’ve heard the criticism here, and we’ve made it ourselves in our own reaction to our government’s use of the clause, that they know their legislation violates human rights; therefore, they’re using the notwithstanding clause to shelter it from legal challenge because they know they would lose if it came to that. What do you think of that assessment?
A. I think that’s quite a fair assessment, and I think that’s what people find offensive—when we have a democratically elected government that is clearly and intentionally saying, we’re going to violate your basic rights. We don’t like that, especially when they’re doing it frequently.
Q. Is it time for a conversation about removing the notwithstanding clause from the charter?
A. I think it is because it’s becoming a bigger issue, and an important issue to define who we are as a country. So that’s a good reason to do it. On the downside, making any constitutional amendment is extremely difficult, almost impossible, so it’s probably better to do it by having the Supreme Court of Canada interpret it and maybe revisit whether there can be some checks on the substance of the clause, not just on the process of using it.
