By Canadian Press

What is the notwithstanding clause? An explainer on the rarely used provision

Sep 28, 2023 | 3:23 PM

REGINA — Saskatchewan Premier Scott Moe has pledged his government will use the notwithstanding clause of the Constitution and pass legislation this fall to ensure the province’s school pronoun policy remains in place. 

He made the comment shortly after a judge granted an injunction to pause the policy, which requires parental consent when children under 16 want to go by different names or pronouns at school. Lawyers for UR Pride sought the injunction, arguing the policy could cause teachers to out or misgender children, violating the Charter of Rights and Freedoms.

Court of King’s Bench Justice Michael Megaw ordered the injunction until a constitutional challenge can be heard in court, a decision Moe called “judicial overreach.”

Here is a look at the rarely used clause: 

WHAT IS IT?

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The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the Charter for a five-year term.

ITS ORIGINS

The clause in its current form came about as a tool to bring provinces onside with then-prime minister Pierre Trudeau’s signature piece of legislation. With Charter negotiations ramping up in the early 1980s, Trudeau didn’t see the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts. In the end, Trudeau reluctantly agreed. 

ITS STRUCTURE

The clause only applies to certain sections of the Charter. For instance, it can’t be used against provisions that protect the democratic process — that would create a pathway to dictatorship. The clause also can’t be used for more than five years at a time. This ensures that the public has the chance to challenge a government’s decision to use the clause in a general election before it can be renewed.

ITS USE

The notwithstanding clause usually comes up whenever there is a controversial court ruling. For instance, former prime minister Stephen Harper’s Conservatives were asked about, but refused to use, the clause on a court decision involving assisted dying. While often debated, its use is much rarer. Quebec, as the only provincial government to oppose the Charter, passed legislation in 1982 that invoked the clause in every new law, but that stopped in 1985. In 1986, Saskatchewan used the clause to protect back-to-work legislation and Quebec used it again in 1988 to protect residents and businesses using French-only signs. Alberta tried to use the clause in a 2000 bill limiting marriage to a man and a woman, but that failed because marriage was ruled a federal jurisdiction.

RECENT NOTABLE USES 

Last year, the Ontario government invoked the notwithstanding clause to pass legislation imposing contracts on approximately 55,000 education workers in the province — including librarians, custodians and early childhood educators — and ban them from going on strike. 

In 2021, Ontario’s Progressive Conservative government used the notwithstanding clause to restore parts of the Election Finances Act that had been declared unconstitutional. It means third parties can only spend $600,000 in the 12 months before an election is called.

Quebec proactively used the notwithstanding clause when it passed a major reform to its signature language law last year. Bill 96 reasserts the right of Quebecers to live and work in French. and toughens sign laws and language requirements for businesses, governments and schools.

Quebec also pre-emptively used the clause in passing its religious symbols law. Bill 21 was adopted in June 2019 and prohibits public sector workers who are deemed to be in positions of authority, including teachers, police officers and judges, from wearing religious symbols such as hijabs and turbans on the job.

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This report by The Canadian Press was first published Sept. 28, 2023.

The Canadian Press