What good is a Charter of Rights and Freedoms that can be opted out of?
The notwithstanding clause used to be a rarely used section of the Charter. But last year that changed — it became clear that it’s actually central to Canadian politics, and it will likely be used with increasing frequency in the years ahead.
For the first time, two provinces successfully used the notwithstanding clause in the same year. Ontario Premier Doug Ford used it to prevent education workers from striking and Quebec Premier François Legault invoked it to restrict minority language rights.
At what point did the taboo against using the notwithstanding clause end?
As discontent against the economic status quo grows across Canada, governments are increasingly using the notwithstanding clause to advance an authoritarian agenda.
In response, many are now calling for its removal.
Last week, a Liberal MP from Montreal said it is time for the country to debate whether the notwithstanding clause should remain on the books after the Bloc Québécois forced parties in the House of Commons to vote on whether they felt provinces had the legitimate right to use the constitutional power however they wanted — including pre-emptively. Both the Liberals and federal NDP voted down the motion, while the Conservatives supported the Bloc’s call.
But the problem with the notwithstanding clause is not that it undermines a robust Charter, but that it corrodes an already flawed constitution and weakens the country’s democracy.
The Charter’s glaring limitations
The Charter only applies to government actions, not to interactions between private parties, according to a 1986 Supreme Court ruling. The Charter is powerless in interactions where the government is absent — from workplace discrimination to racial profiling in privatized spaces such as shopping malls. Thankfully, private interactions are subject to human rights legislation, but this legislation can be removed as quickly as it was enacted.
Additionally, while the Charter recognizes Aboriginal and treaty rights, it does not support Indigenous sovereignty. There are also no economic rights under the Charter. The Charter can stop an unlawful search of your home, but it will not provide you a home if you are homeless.
We cannot simply remove the notwithstanding clause while leaving the rest of the Charter untouched. The notwithstanding clause undermines democratic rights, but these rights were weak to begin with. If Section 33 was removed, governments would still find other ways to advance their authoritarian agenda.
For this reason, opposition to the notwithstanding clause should be part of a larger movement to update the Charter of Rights and Freedoms. Charter rights should protect against both government and private violations, and recognize Indigenous peoples’ sovereignty. The Charter should also ensure the right to collective bargaining, housing, food, healthcare, a safe climate, and a basic standard of living.
The notwithstanding clause must be removed — and allow a pro-labour, anti-racist and decolonial Charter to be created.
The Charter is central to Canada’s mythology
For most Canadians the Charter is sacred. It’s the Garden of Eden, with the notwithstanding clause the serpent who corrupts paradise. But people, not gods, write laws.
Why was the Charter created?
The conventional story taught in civics class and law schools is that beginning in the 1960s Prime Minister Pierre Trudeau sought to protect Canadian’s rights under a new constitution. To do so, provincial consent was needed. The provinces, however, did not want to give up more power to the courts. The only way to get provincial consent was to include a notwithstanding clause, which allowed provinces to opt out of certain Charter sections.
It’s a nice story. But there’s one problem: provincial consent wasn’t needed. In 1981 the Supreme Court determined constitutional change does not legally require provincial consent.
So, why did Trudeau seek provincial consent? If he supported fundamental rights, why did he sacrifice them to get provinces to agree to the Charter?
The answer is he was not really interested in rights.
Trudeau was a Canadian nationalist. He wanted Canada fully separate from Britain and united. Like the Declaration of Independence following the American Revolution, rights were constitutionally enshrined to foster a sense of equality and pride in Canadians. The Trudeau formula was to extend rights when they created national unity and curtail them when they undermined it.
It’s a formula that worked in his early career, where Trudeau was praised both for decriminalizing gay sex and abortion, while suspending civil liberties during the October Crisis.
For this reason, even before the notwithstanding clause was added, the Charter was doomed: you can’t expect robust rights when they are secondary to national unity. Whenever rights undermined national unity, the rights were excluded.
Economic rights were excluded, because including them would generate class conflict. Indigenous rights were initially excluded, because recognizing them would undermine the settler state. (It was only after Indigenous people protested that Section 35 was added, which recognizes “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”)
Likewise, Charter rights were sacrificed to ensure provincial consent. Although this consent was not legally necessary, it was required for national unity.
In the 1980s, Quebec separatism and Western alienation were growing. The federal government unilaterally enacted a new constitution that would have furthered this. For this reason, an agreement was reached with all provinces except Quebec. In return for their consent, Section 33 was added to the Charter, which allowed provinces to opt out of certain sections.
Contrary to the conventional narrative, the notwithstanding clause is not a flaw within an otherwise rights-oriented Charter — It is consistent with the Charter’s purpose, which is to keep the country together.
Trusting the public to pushback on governments using Section 33
Allowing provinces to avoid the Charter would make Trudeau’s rights-based nationalist project moot. To ensure the Charter’s success, Section 33 was limited.
First, provinces could not opt out of democratic, mobility, and language rights. Second, legislation would only apply for five years. With elections every four years, a new government could decide to not re-enact it.
Finally, legislation would expressly declare its operation “notwithstanding” the Charter. The hope was that a public that supported the Charter would oppose any government undermining it, thus deterring the government from using Section 33.
Initially, it worked. Quebec used the clause for all legislation to protest the Charter, but stopped when the Liberals won the 1985 provincial election.
Outside Quebec, provinces used it thrice before 2018. The first use in 1982 in Yukon never came into force. The second time in 1986 the courts determined Saskatchewan’s legislation did not violate the Charter and thus Section 33 was unnecessary. Then, Alberta’s use in 2000 against same-sex marriage had little effect because marriage was federal jurisdiction.
It appears provinces were more respectful of rights. But don’t get nostalgic. Provinces avoided the notwithstanding clause not out of principle, but because it wasn’t needed. In the 1980s, neoliberalism brought tax cuts, de-unionization and free trade. Then the Supreme Court ruled in 1986 that the Charter did not apply to interactions between private parties.
As long as neoliberalism remained, the Charter was not an issue.
A tool for authoritarian provincial governments
But the neoliberal consensus did not last. As inequality increases, discontent against the economic status quo grows. Governments respond with authoritarianism. And as part of this authoritarian agenda, the notwithstanding is being used like never before.
To avoid backlash, provincial governments couch their agenda as part of the “culture war” between social groups.
For the first time ever, Ontario used the notwithstanding in 2018. The anti-democratic Efficient Local Government Act halved the number of municipal councilors in Toronto. Many consider it revenge for Premier Doug Ford losing the 2014 mayoral election and his brother Rob Ford’s treatment after the infamous video was found in 2013 of him smoking crack. But it was only possible because of the growing rural-urban divide. Ford could sacrifice some seats in Toronto knowing he would have enough rural support.
Ford blamed the council size for causing inefficiency, rather than a decade of austerity, which his brother contributed to. He used the notwithstanding clause again in 2021. Bill 254 restricted third-party advertising during elections, while doubling the donation limit. The Ford government gave a populist spin, arguing it would limit the influence of both corporations and unions. However, it only really impacted the latter — effectively silencing a number of Ford’s key critics.
Ontario is not alone. After the Coalition Avenir’s electoral victory in 2018, Quebec used the notwithstanding clause for the first time in fourteen years. Bill 21 bans civil servants in positions of authority from wearing religious symbols, including hijabs, turbans and kippahs. The government argued it would promote secularism, but with growing xenophobia, its real purpose was to target Muslim women.
What was the consequence? If the Charter creators were right, the public would have opposed the notwithstanding clause and elected a new government. Instead, Ford and Legault’s strategy to couch an authoritarian agenda as part of the culture war worked. Ontario’s Progressive Conservatives gained 16 seats in the 2022 provincial election. Quebec’s Bill 21 was especially popular, with two-thirds of Quebecers supporting it. Even the opposition was supportive. The Parti Québécois supports the bill, only arguing that it did not go far enough. In the 2022 election the Liberal Party of Quebec said it would only repeal some sections of the bill.
Likewise, Charter rights were sacrificed to ensure provincial consent. Although this consent was not legally necessary, it was required for national unity.
In 2022 Ford again used it to prevent education workers from striking. Although he withdrew it, it gave leverage during negotiations. Despite backlash, the Progressive Conservatives currently lead in the polls. That same year, Legault passed Bill 96 to promote the French language. Immigrants, who are blamed for French decline in the province, will not be able to access government services in a language other than French after being in the province for more than six months. The bill also required French in certain businesses and limited enrollment in English colleges. The legislation is popular, with Quebec Solidaire and the majority of the public supporting it.
If the notwithstanding clause was bad before, it has only gotten worse. The previous limits no longer work.
Remember, the creators of the Charter believed the public would oppose the use of the notwithstanding clause. This opposition would either deter its use or make the government unpopular and lose the next election. With a five-year limit on the notwithstanding clause, a newly elected government would not renew the legislation.
Unfortunately, provincial governments learned that spinning their authoritarian agenda as an attack against social groups — those in cities, immigrants or religious minorities — would diminish opposition. The five-year limit didn’t matter, since they would not only be re-elected, but also gain support.
Democracy on life support
The notwithstanding clause must go. As long as it remains, democratic rights will be under attack. But removing it while leaving the rest of the Charter would be foolish. Even without the notwithstanding clause, Charter rights are limited.
As stated before, there are no economic rights under the Charter. When a claim was brought in 2015 that argued lack of housing violated the Charter right to “life, liberty and security of the person,” the Ontario Court of Appeal rejected it. While Ford used the notwithstanding clause to prevent a workers strike, the previous Ontario Liberals enacted back-to-work legislation without it.
Since the Charter only applies to government action, it does not protect against discrimination in the private sphere. Up to now, this has not been a problem since provincial human rights legislation has filled this gap, but there is nothing stopping provincial governments from repealing those laws.
Although it falls outside the Charter, Section 35 of the Constitution Act recognizes that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” While important, this section stops short of recognizing Indigenous sovereignty. The Supreme Court determined that legislation can infringe Aboriginal rights when this infringement is “justified.”
To ensure robust rights, far more needs to be done than eliminating the notwithstanding clause. Economic rights should be protected, Canadians should have a right to a safe and livable climate, and rights should also be protected against non-government infringement, and Indigenous sovereignty should be recognized — an anti-racist Charter that supports worker’s rights, economic rights, and decolonization.
