Tom Axworthy expressed his lack of surprise when provincial governments resort to the notwithstanding clause of the Canadian Charter of Rights and Freedoms to override court decisions. As a former principal secretary to Prime Minister Pierre Trudeau and current public policy chair at Massey College, Axworthy noted the increasing use of this clause, attributing it partly to the rise of populism.
Legal experts have raised concerns about the potential misuse of the notwithstanding clause, fearing it could be exploited to infringe on minority rights. However, some argue that elected leaders have the legitimate authority to use this constitutional measure. David Schneiderman, a law professor at the University of Toronto, concurred with Axworthy, linking the clause’s increased use to populism and challenges to prevailing cultural values.
Recently, Alberta Premier Danielle Smith invoked the notwithstanding clause for legislation concerning transgender issues, following previous use in legislation affecting striking teachers. Similarly, Ontario Premier Doug Ford has considered using the clause for making sex offender registry information public.
The notwithstanding clause, also known as Section 33, enables premiers or prime ministers to override court rulings on legislation that may conflict with certain sections of the Charter for a limited period. Despite its historical sparing use, provinces like Saskatchewan and Ontario have employed it more frequently in recent years. Political science professor Lydia Miljan observed a normalization of the clause’s usage, with premiers viewing it as a legitimate governance tool.
The clause’s introduction aimed at countering judicial activism, particularly in extreme cases where court decisions clashed with public sentiment. However, its current application has sparked debates over its intended purpose and implications for minority rights. While some view it as a necessary check on judicial power, others caution against potential abuses that may undermine the Charter’s protections.
Geoffrey Sigalet, director of the UBC Research Group for Constitutional Law, highlighted the clause’s evolving role as a mechanism for provincial governments to assert their views on Charter rights amid clashes with federal authorities. As debates continue on the clause’s implications for democracy and rights protection, the balance between legislative authority and judicial oversight remains a central point of contention.