Rights are at risk if we normalize the notwithstanding clause.

The original intent was for the clause to be a last resort, but that's not how provinces are using it. Our Supreme Court will weigh in, but it's for our legislatures to collectively fix.

Last week, our Supreme Court heard arguments on the impact of Quebec’s Bill 21 and the use of the notwithstanding clause. With provinces increasingly turning to this extraordinary clause, it’s worth considering the role that it was originally intended to play, how it’s being used, and what the path forward could be to best protect rights.

A deep dive into section 33 of our Charter is a little wonky, but it matters because it has a huge impact on our individual rights and freedoms.

There’s a real risk to our civil liberties if we normalize the use of the Charter’s notwithstanding clause.

Simply, it allows politicians to pass a law that infringes Charter rights unreasonably, and courts are neutered from striking the law down.

Take Quebec’s Bill 21, the central focus of litigation before the Supreme Court. The law banned public sector workers from wearing religious symbols. So Muslim women who wear the hijab can no longer find public employment as teachers, doctors, judges, you name it.

It was passed in the name of secularism but, in effect, it is an extreme infringement of religious freedom. State secularism, properly understood, protects both freedom of and freedom from religion. It means neutrality. Not Bill 21 style suppression.

Now, our individual rights aren’t unlimited at the expense of the collective good, and section 1 of the Charter provides for reasonable limits on rights in pursuit of important public goods. Two guardrails operate here: first, there has to be a pressing and substantial policy objective and, second, the rights limitation has to be reasonable.

The notwithstanding clause is an extraordinary provision precisely because it allows politicians to infringe a right even where a court finds that infringement to be unreasonable.

Why does the Charter’s notwithstanding clause exist?

You might wonder why in the world anyone would think it’s a good idea.

Well, the federal fathers of the Charter didn’t. Pierre Trudeau envisioned courts having the final say on Charter interpretation, as they do with the division of powers.

Western Premiers disagreed. Judges are fallible, of course, and these provincial leaders argued for the supremacy of elected parliaments over appointed judges.

The notwithstanding clause was, in the end, a compromise to reach a consensus.

As Alberta Premier and the clause’s architect, Peter Lougheed put it:

“Mr. Trudeau got his Charter and the Western Premiers got both the Alberta Amending Formula and a notwithstanding clause.”

Thoughtful academics have called it a “very Canadian solution,” striking a balance between the British parliamentary tradition and the strong judicial review of the United States.

But it was also to be a solution saved for extraordinary situations. Those around the table when it was adopted have called it a “last resort” to be used in “exceptional situations” and “after careful consideration.”

Contrary to that original intent, the notwithstanding clause has been invoked by provincial governments more in the last 10 years than in the first 35 years of the Charter’s history. The feds have never used it.

Most recently, the Alberta government invoked it four times: once to pre-emptively prevent judges from striking down a law that violated the collective bargaining rights of teachers, and three times to protect new laws that limit the rights of transgender youth.

These moves followed Saskatchewan invoking the clause pre-emptively to insulate its own law policing names and pronouns in schools.

And, of course, that move followed the Quebec government using it pre-emptively in 2022 to protect an expansion of French language laws, and yes, the controversial Bill 21 passed in 2019.

Here in Ontario, Premier Ford has used or threatened to use the clause three times. A law that explicitly preferenced political parties by restricting third party spending, proposed legislation that would have banned education workers from striking (abandoned in the face of pushback) and a threat to use it when he messed around in Toronto’s 2018 municipal election.

These are all controversial uses of the notwithstanding clause. And mostly pre-emptive uses - not where a parliamentary body, after careful consideration, believes that the courts have gotten a decision wrong on a matter of important public policy, but where parliaments are afraid of judicial scrutiny entirely.

If we aren’t careful here, Charter rights will mean less than they should.

And sure, there is no doubt that judges are fallible. Just look at Citizens United in the United States, and the damage it’s wrought on American democracy.

It’s also true that populist decision-making through parliament can lead to the tyranny of the majority versus minority rights. History is littered with these rights violations.

The notwithstanding clause was the trade-off here, but new rules are clearly needed to constrain the clause’s misuse.

Interestingly, Peter Lougheed, yes, the same Alberta Premier and champion of the clause, offers us a useful way forward.

25 years ago, he argued for three straightforward amendments:

1. If the notwithstanding clause is used, a legislature should be required to spell out with specificity the purpose of the law.

2. Such an extraordinary measure should require a “higher level of authorization than a simple majority.” Lougheed argued for a supermajority of 60%. I’d go higher, but the general point stands.

3. There should be no pre-emptive use of the clause. It should only be used after careful consideration of a judicial decision.

Our Supreme Court can and should address this last point, at least in part. If anything good comes from the Bill 21 case, it’ll be that judges can still weigh in with reasons that explain whether or not a right has been unreasonably infringed, even if the notwithstanding clause prevents a more meaningful judicial remedy.

Of course, a paper judgment might help inform public debate, but it means little to those who have had their rights infringed.

Parliaments, both federal and provincial, should act together to amend the Constitution and establish stronger guardrails for the use of such an extraordinary measure.

We should act together to ensure Charter rights are respected and protected.