The Decibel - The fight over the notwithstanding clause

Episode Date: October 14, 2025

A legal battle is underway over the notwithstanding clause, which allows governments to override “[certain] rights of Canadians” that are protected by the Charter of Rights and Freedoms. It’s a tool provincial governments have invoked often in recent years.But the federal government is bringing the dispute to the Supreme Court, asking it to consider new limits on the clause. Divisions over that legal review are breaking out, with five conservative premiers calling on Ottawa to back off.Globe columnist Andrew Coyne joins us to talk about the roots of this battle. He argues that there’s a deeper fight going on – that is not about the notwithstanding clause but rather, longstanding grievances with the Charter itself.Questions? Comments? Ideas? Email us at [e-mail] Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

Canada's Charter of Rights and Freedoms outlined some of our core protections. Things like freedom of religion, freedom of expression, and the right to a fair trial. But there's a part of the charter that lets provinces or the federal government temporarily ignore those rights. It's called the notwithstanding clause. It was designed as a kind of break glass in case of emergency tool. But it's being used more and more often. And right now, there's a potentially precedent-setting case before the Supreme Court that could set limits on how the notwithstanding clause is used.

This is causing a rift between the federal government and a number of provinces. Today, Globe columnist Andrew Coyne is on the show. He'll explain what's going on with this case, why the clause has been used so much recently, and what he thinks this whole fight is really about. I'm Cheryl Sutherland, and this is this. This is the decibel from the Globe and Mail. Hi, Andrew.

Thanks much for being on the show. My pleasure. So, first of all, I think we should start kind of basic. We've heard a lot about the notwithstanding clause in the last few years. What is it exactly and why does it matter? The notwithstanding clause is also known as Section 33 of the Charter of Rights. It allows governments to pass laws that would otherwise run afoul of the charter as long as they expressly declare that that's what they're doing. In other words, you invoke this clause.

It allows the law to stand, notwithstanding, the fact that it's in violation of the charter for five years. And then you have to renew it if you want to still do so. So you have to pass the legislation again with the same declaration. Can you just remind us, like to ground us here, like remind us of a few laws that it's been used for recently. Well, recently it's become frequently used. And I think it's eight times in four provinces in the last eight years. For a long time before that, outside of Quebec had been quite quiescent. people talk about it in terms of it's to defend parliamentary sovereignty and these sort of abstract

notions. When you actually get into what it's usually used for, it's usually because you want to do something that will be discriminatory against some minority and you don't want to be held to account for it. So the very first time that Alberta, for example, talked about using it, they didn't ultimately do it, but it was to exonerate the government from having to pay compensation to a group of mentally handicapped people or mentally, you know, had some mental issues who've been forcibly sterilized in the past and were seeking compensation. The government wanted to get out of having to pay them compensation, a huge outcry, and they didn't wind of doing it. But in recent times, you've seen it used in Quebec to exempt Bill 21, the notorious

Bill 21 from charter scrutiny. That's the one that says you cannot wear religious gear if you're working in certain jobs in the public service, which for some religious minorities basically means you can't work in the public service. So pretty outrageous discrimination, but notwithstanding clause has been invoked. They also invoked it in defense of Bill 96, which makes French the only language of Quebec. It composes language bars in the public service as well, effectively. So also a pretty odious piece of legislation. Saskatchewan invoked it in defense of legislation that would require parents to tell, require school to tell parents that their kids had changed their pronouns. Yeah, parental consent as well. I think it's like the parental consent for anyone

under 16 that wants to change their pronouns. Thank you for one of me, first of all, trip over myself of that. But what's notable about this is not only the frequency, but in each case, the notwithstanding clause is being invoked preemptively. So it's not waiting for some judicial ruling that is some crazy wacko ruling that's way offside of the plain sense of the language of the charter, et cetera. It's just doing it in advance so that you never have to face a court, you know, embarrassing you, if you will, by making such a ruling. Yeah. So the idea here is that the way the notwithstanding clause could be used is that there's a law. It gets challenged. And then a province could say, oh, actually, we want to use

notwithstanding clause here. But in these cases, it's preemptively used. So it's like they have the law and they use the notwithstanding clause at the same time. And when the charter was passed, it was a pretty clear understanding at the time that the reason for the notwithstanding clause was to, in emergency situations, as a safety valve, in case there was some crazy ruling or some national emergency that required the temporary suspension of civil liberties. It was meant to be, I think it's pretty clear from the language at the time, a pretty carefully drawn circumscribed thing to be, you know, an emergency break glass kind of thing.

I don't think it was ever envisage it would be used basically every other week, which is close to where we're getting. We've had it eight times in the last eight years, as I mentioned. It looks like we're going to have two or three more coming down the pike in Alberta. And gender affirming care on those ones. And what you get the sense of from the cumulative impact,

and it's always done by conservative government, small C or large, that the intent is to normalize the use of the notwithstanding clause, to make it no big deal, and therefore effectively to gut the charter. If the rights in the charter only apply as long as government say they should, ultimately what use is the document. So it's one thing to have a notwithstanding clause as some safety valve in an emergency. It's another thing to have it where you're just basically invoking it routinely.

I think this is a good moment to actually take a step back and talk about the history to kind of ground us here. How did the notwithstanding clause get created? Well, it had been, to some extent, in the wind. There had been Peter Lougheed, then the Premier of Alberta, was a fan of this idea. It had been suggested to him by one of his deputy ministers. Alan Blakeney, the Premier of Saskatchewan, liked the idea. They'd been proposed by a couple of academics along the way.

It hadn't been a huge part of the discussions through most of the, if you go back and look at the history of patriation. There was a special joint committee of the Commons and Senate that had long hearings on this. It really didn't feature there except in passing. But as they came down to the crunch where the negotiating really got close and heavy, it became the thing that you needed to get premiers to, some premiers, to agree to the Charter of Rights. Right. So just a step back here. So this is when the Constitution was being patriated in Canada, which is around 1982.

And a part of that was the Charter of Rights and Freedoms. That's right. And what patriot meant was up until that time. time, the only way we could amend our Constitution was to go to Great Britain and have them amend the British North America Act, as it once was called, which was our founding constitutional document. So obviously, that's not a situation that could persist for long, but it did persist for decades because nobody could agree on an amending formula here in Canada. That was one of the things they had to agree on in the Patriation Round and what made it so contentious was what

formula could you find, what combination of provinces with how much of the population. And the other big part of the Patriotian round was a charter of rights, which was a personal ambition and vision of Pierre Trudeau's, but also had a lot of support among a lot of people in the country at the time. And a simple thing to say, but like, what is a charter of rights? I like to call it it a list of promises. It says, here's a list of important, we'll recognize civil liberties and freedoms and rights that governments promise they're not going to trample over.

So when you make a promise like that, one of the questions that comes up is, who decides whether you've kept your promise or not? And so one of the reasons why we have judicial review, this idea of the courts, being able to overturn a law if it's not compatible with the Charter of Rights, is that the courts are basically holding into their word. So people talk about, oh, you're giving the courts the last word or you're saying the courts are superior to the legislature. It's really not that.

It's saying the courts are other than the legislature. There are another set of eyes, an independent arbiter that can say, okay, this law is not compatible with the promise you made in the Charter of Rights, and therefore it's of no force effect, which was a power given to the courts by the Parliament of Canada with the support of the provincial governments. But people will say an absolutely integral part of that bargain was that there would also be a notwithstanding clause. So people who are mad about this are absolutely right to say. They have a perfect right to say that this was part of the constitutional bargain.

But what I would say back to them is what was also understood as part of that bargain was it would be used sparingly. So both sides in this dispute are claiming that somebody is breaking the constitutional bargain. Maybe there's a little bit of truth on both sides. So let's get into why we're talking about the notwithstanding clause today. The Supreme Court is now going to be looking into its use. Why? Well, there's a challenge to Bill 21 in front of the Supreme Court. That's the one about the religious gear in the public service.

The lower courts in Quebec have already ruled that because the notwithstanding clause has been invoked, it can't be a challenge on charter grounds. but a bunch of groups are challenged in law on other grounds. And one of the things that at least some of the respondents or interveners in the case are asking is, was the use of the notwithstanding clause in this case proper? So you're getting into the Supreme Court ruling on whether the notwithstanding clause, whether there are any conditions applied to its use. It seems a bit of a stretch since the point of the notwithstanding clause was to exempt laws from Supreme Court review.

But every line the Constitution is reviewable by the Supreme Court, including the notwithstanding clause itself. Now, there was a case in 1988, Ford v. Quebec, the nub of which was the Supreme Court ruled the courts cannot inquire into the purpose or substance of the use of a notwithstanding clause. As long as it observes the form of, you know, you have to expressly declare that you're overriding the charter, then that's that. And it sounds like from that point that, oh, therefore, there's nothing to be said about the notwithstanding clause.

But the ruling was more narrowly tailored than that when you look at it. And so certainly what is now causing controversy is the federal government has intervened in the case. They're not challenging Bill 21 at all in terms of the purpose, et cetera, which is unfortunate in my view. Secondly, they're not challenging the use of the charter preemptively, which a lot of people thought they would do. They've gone at two things, much more mild, in my opinion. One is they've said, even when the notwithstanding clause is invoked, shouldn't the courts be allowed, nevertheless, to rule them whether a right was violated? Wouldn't have any legal effect. Once the notwithstanding clause is invoked, the courts can't overturn the law.

But it would at least set out the facts in front of the public so they could judge whether this was a appropriate use of the notwithstanding clause or not. The other one that's more controversial is, they've said, look, as a matter of sort of practicality, if you keep invoking the notwithstanding clause, keep renewing that original invocating. There's five years as it's expired and you keep renewing it over and over and over again. Is there a point reached at which you're not merely temporarily suspending a civil right? You're essentially extinguishing it as a practical matter. And if that's the case, does that essentially go further than the drafters of the notwithstanding clause, the drafters of the 1982 Constitution intended? It's not unusual for an intervener in front of a court to ask the court to interpret the Constitution in a way that

the intervener would prefer. That's what goes into these things. But it's been treated as being some enormous affront. Yeah, why does it seem as controversial? People are blowing this up that you can't touch a hair on the head of the notwithstanding clause, that it must exist untouched by any judicial oversight or judicial review of any kind, whatever. You cannot inquire into whether the notwithstanding clause is being used for the purpose to what you intended. Because if you do that, so it's argued, you're violating the 1982 compact, the bargain that was made. So there's a lot of very windy assertions that this is a, not just a violation of the combat, that this is endangering Canadian unity.

It's going to lead to a constitutional crisis. I think, frankly, the reaction is vastly overblown. But that's what it hinges on is that the nature of the bargain in 1982 was that the notwithstanding clause is an absolute blank check. You can use it for any purpose you like as often as you like. And the courts cannot inquire in any way, shape, or form into that. We'll be right back. You've argued that this isn't really about the notwithstanding clause, but that is actually a battle over their charter itself. Why do you say that?

When you look at how exaggerated the response is to this relatively mild intervention by the federal government, when you consider the context that conservatives, small-seat conservatives have been railing against the charter. railing particularly against judicial interpretation of the charter. There's some overlap between the two. Some never liked the charter at all. Some at least claim that they have no problem with the charter. They just don't like the way the judges are interpreting it. It's sometimes hard to tell which is which. That's the context here that they've never terribly come to grips with either the charter

or certainly with judicial review. Now, in the United States, when they have these fights, one of two things is generally suggested. One is, let's put different types of judges on the bench who will interpret the Constitution more the way that we think it should be interpreted. Or if we don't like the way the judges are interpreting the Constitution, let's amend the Constitution to more explicitly spell out what we mean and how we want it to be interpreted. And both of those are perfectly in keeping with rule of law, the sometimes balancing act between democratic imperatives and protecting minority and individual rights. in this country, it's almost impossible to win the Constitution. So that's basically been kind of put out. And conservatives, I think, have with some justice, would look at the courts and say they've all been appointed by liberal.

Let's get into this. Because this is what I'm really interested in and wondering about. Because why is it that there's so much discontent from small, see, conservatives? What are they, what's their beef with the charter? I think, as I say, some have a beef with the charter because they're pure parliamentary supremacists. And so they bristled the very idea. that any court could overturn any law passed by a democratically elected parliament. So for some, it's an absolute thing.

They want the power in the provinces. Well, they would say with the legislatures. Okay, yes. Because it is effectively about the provinces since the federal government has never invoked the notwithstanding clause, although Pierre Paulyevra has said he would do so if he were elected. Yes. So some of them are that hardcore. A lot of them, it's, I don't like the way that the judges have been interpreting.

I think they've been too small ill liberal in their interpretation. They've read into it things that aren't there. That's not always untrue. There are examples of genuine judicial activism. Is there a sense that like, whether it's right or wrong, that they feel that there's too much of a liberal skew? Yeah. So I was going to say that there are genuine examples of judicial activism. It's just where these things overlap with the first group is you sometimes get the sense that any exercise of judicial review will be called judicial activism just by its very nature.

But what I want to say, though, is a judicial conservative would have some justice in looking at the record of the courts and saying, think they've been too large and liberal. They've been too expansive in their interpretation. They have read things into the Constitution and aren't there. There are legitimate cases of that. The question is, what do you do about it? And I don't think invoking the notwithstanding clause willy-nilly is a terribly useful thing. I don't think, as some people would have us do with just throwing out four decades of jurisprudence on the charter, we would be particularly useful. But I do think that part of the nub of this and part of why conservatives are so disaffected is the way in which we appoint judges at the Supreme Court.

Court. One of that is procedural and one of that is just the way it's been done. So let me deal with that second one first. It should be part of the idea in appointing judges the Supreme Court who have such enormous power by virtue of that judicial review that there be a kind of a bipartisan backing to them, that they be judges that both sides can live with. And I think there was a little bit more of a tradition of that in the past. And I think in recent years and decades, it's been stretched that liberal governments have been appointing judges that I think fair-minded conservatives would be uncomfortable with. I think that's unfortunate.

I think there should be more of a tradition of trying to find support on both sides. The problem is, in most countries that have Supreme Court's equivalents, there is some provision for legislative oversight or some kind of independent oversight of the selections precisely for this purpose, to try to expand the legitimacy to make sure that they're widely regarded as being fair and acceptable as interpreters of the Constitution. In Canada, it's been until very recently entirely the personal purview of the prime minister. Okay, yes. And it's only been mildly adjusted.

So I think that is one of the ways in which we need to address this is to change both the substantive quality of the types of people that were appointed to the bench so that they have more bipartisan buy-in, but also as a necessary backstop to that changing the process so that it's not just essentially the purview of the prime. minister. The other even deeper kind of meta cause of this is, this is my grand unified theory of Canadian politics is, for the last 130 years, the liberals have won two elections in every three. They'd won twice as often as the conservatives have. So there's kind of a built-in imbalance in our politics federally. And a lot of the pathologies of our politics flow from that, whether you want to talk about liberal arrogance or conservative grievance and resentment, they both stem from this. And it tends to make conservatives feel like Everything's stacked against the judiciary is against us, the bureaucracies against us, the press is against us.

And it's not that there's not a grain of truth in that. It's what do you do about it? It doesn't seem like it's a very easy fix. Yeah. Well, and part of what we'll fix it is if we have more contestable politics. If every election, the conservatives and the liberals each think I could win or lose this, I think you ultimately get to a situation where each of them, when they're in power, is going to be mindful of the rights of the opposition because they might be in the opposition before too long.

Whereas if you think you're going to be in power for a long time, you're going to be a little less concerned about the rights and progress of the opposition or in this case of this kind of tradition of bipartisanship that we maybe once had, but certainly need to regain. So we don't know exactly when the Supreme Court will hear this case. If it doesn't go the way the federal government wants, is there anything else they could do? Well, it certainly raises a question. If we go down the road where the notwithstanding clause gets embedded and entrenched as a norm, as something you can just do every other week, and if, therefore, the charter becomes effectively a dead letter, if the charter cannot protect vulnerable minorities. That's the point of having the charter at that point.

What's the point of the charter? But also, that would be a first in Canadian history. So long before the charter, we had a tradition and we had powers to protect minorities. Before the charter, before it was assigned to the courts, it was the role of the federal government. The federal government was supposed to protect local minorities from local majorities. And how did they do that? They used the disallowance power. And that was the purpose and intent of the disallowance power.

The disallowance power is a provision of the Constitution, still in the books, that allows the federal government to essentially set aside a piece of provincial legislation. Now, that's an enormous power that you certainly wouldn't want the federal government to be invoking willy-nilly every other week because it would eviscerate the division of powers between the federal and provincial governments. But narrowly tailored to protecting minority rights, eventually it gave way to the courts and the charter rights and constitutional mechanisms that way. But if that's no longer going to be in place, if the charter, and this is a big F, but if the charter becomes a dead letter, then we would be in a position for the first time in our history where we had no protection for minority rights. And that's why I've argued that

if that's going to be the case, then it may be it's time to bring back the power of disallowance for that very narrowly tailored purpose. And it needn't be used if the provinces don't overstep. It could be a kind of a deterrent. So you could frame it as if a province invoked a notwithstanding clause. If it's used in some extravagant, overstepping kind of way, that the disallowance power would be invoked, I obviously grant that that's a very big thing. That's a very politically explosive idea. But the notwithstanding clause was supposed to be a politically explosive idea. This was the thing that was said at the time in 1982 was no government would dare to use it lightly because the political blowback would be so intense. And that's

true, you know, the first or second time you invoke it. But if you keep on invoking it over and over and over again, the blowback diminishes, the political cost of invoking it fades. And it becomes essentially costless, you know, get out of jail free, you know, use it any time you like. So, I mean, you're talking about the disallowance, this idea of disallowance. This idea of disallow. I feel like that would also cause a rip between the provinces and the federal government. But these both ideas, what I'm hearing right now is that this idea of national unity is kind of at stake. And I guess what does this court battle say about Canadian unity in this moment right now, in this nationalist moment? National unity is never far away as an issue in Canada.

I don't think that's necessary or inevitable, but it is the case, at least in present times. All I would say to that is it cannot be the basis of national. community, that thou shalt not ever do anything that annoys the provinces. And that is perilously close to where some people would have us, that every time the provinces, particularly Quebec, say boo about something, it's a crisis, the feds have to back off, how dare they provoke this. And it's easy to light your hair on fire over this, but I'll remind people that when the federal government brought in the Clarity Act, this was the bill that put limits on the federal government's ability to enter into negotiations over secession, that it would require

at the very minimum that there be a clear majority on a clear question. So this was that legislation brought in, I think, in the year 2000. In the run-up to that, when they were contemplating this, there were widespread predictions of, if you do this, Quebec is going to go crazy, you're going to just provoke a separate uprising, and the country will be aflame. They brought it in, Quebecers looked at it, said, that seems reasonably sensible, shrugged and went back, to work. The PQ government, led by the, you know, this extraordinary potent political leader Lucien Bouchard were at which end because they had thought they were, you know, all set to exploit this as to make the winning conditions for the next referendum. And it was so disappointing to them, the reaction

to the public, that Bouchard quit politics. So don't take it as a given that just because some premier somewhere is jumping up and down and turning purple that this means the end of Canada because the federal government has done something or the courts have done something that offends the provinces. We really need to get out of that mindset. Andrew, I think it's a good note to end on. This has been a really interesting conversation. Thanks so much for coming on the show. My pleasure. I enjoyed it. That was Andrew Coyne, a columnist at the Globe. That's it for today. I'm Cheryl Sutherland. Kevin Sexton produced this episode. Our producers are Madeline White, Michal Stein, and Ali Graham.

David Crosby edits the show. Adrian Chung is our senior producer, And Angela Pichenza is our executive editor. Thanks so much for listening.