Canadians Have Rights — Abuse of Power Notwithstanding
How the notwithstanding clause provides contrast and common cause to US judicial struggles
In 1982, Canada repatriated its constitution, modernizing it and further separating powers from Britain.1 Part of that new constitution is the Canadian Charter of Rights and Freedoms, which acts as its bill of rights.2
Unsurprisingly, the process of establishing a new constitution was fraught. A central struggle was the balance of powers between provincial legislatures and judicial review. Provincial premiers wanted the legislature to have the ultimate word, as opposed to the judiciary.
The United States provides a recent example of how this is a reasonable concern. The US Supreme Court has been captured by right wing political operatives rather than impartial judges.3 Recent decisions, such as the Dobbs v. Jackson case overruling the federal right to an abortion, are incoherent from the perspective of jurisprudence.45 This is has led to a collapse in public trust in the court.6
In the court’s dissent to Dobbs v. Jackson, the liberal justices summarize the issue,7
The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. Id., at 864. It is hard—no, it is impossible—to conclude that anything else has happened here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” S. Breyer, Breaking the Promise of Brown: The Resegregation of America’s Schools 30 (2022). For all of us, in our time on this Court, that has never been more true than today. In overruling Roe and Casey, this Court betrays its guiding principles.
In order to avoid a rogue court, Section 33 of the Canadian Charter of Rights and Freedoms, colloquially known as the notwithstanding clause, was brokered as a compromise. It allows parliament to pass as an Act of Parliament the declaration of any law that applies to sections 2 or 7 to 15 as not subject to the Charter for a period of 5 years, at which point the Act must be renewed. These sections are of fundamental freedoms (freedom of religion, press, association — more or less the first amendment of the US constitution), legal rights (right to a fair trial, against self incrimination, etc.), and equality (freedom from discrimination). Some rights that the notwithstanding clause cannot be applied to are language rights (use of English or French and to be provided those options), the courts, multiculturalism, freedom of movement, and democratic rights.8
From its inception through the 2000s, the clause had been increasingly rarely used. From 1982 to 1999, 14 of the 16 uses of the clause were by Quebec with regard to education administration, and most notably to overrule Ford v Quebec9 requiring public labeling in both English and French, such that Quebec could choose to continue in many cases of only labeling in French. As has been said, there is Quebec, then all the rest of Canada.10
In the early 2000s, the increasing focus on same-sex marriage equality that was happening in the US was also happening in Canada. In 1999, the Supreme Court of Canada issued a ruling that afforded same-sex couples most marital financial benefits, though without establishing full marital equality.11 This led to various provincial court cases, and some response from provincial legislatures. Alberta, in 2000, passed the Marriage Amendment Act that strictly defined marriage as heterosexual, and invoked the notwithstanding clause to apply it.12
The federal Conservative Party, opposition to the Liberals in power, in 2003 introduced a motion that there was the need to take “all necessary steps” to “protect” marriage as heterosexual. Then Prime Minister Chretien argued “all necessary steps” must mean invoking the notwithstanding clause, turning it into a referendum on the clause itself instead of marriage. It is an incredibly sad state of affairs that LGBTQ+ rights weren’t enough to whip votes, but legislative posturing was, but it did indicate that invoking the clause at the time was incredibly unpopular.
Politics of the past decade have begun to reject the framing of popular and unpopular policy and actions as consequential and relevant to election results. In the US, it has been repeatedly shown that Democratic policies are very popular, yet Democratic politicians are not. Republican policies are consistently very unpopular, yet Republicans still manage to get elected at a frequent rate.13
From 2001 to 2017 the only use of Section 33 was by Quebec in 2005 to allow schools to continue offering religious programs until 2008. Alberta’s 2000 act was declared of no force or effect in 2004 and same-sex marriage was made a right country-wide in 2005.
In 2018, Conservative Doug Ford was elected Premier of Ontario, and American-style politics became much more apparent. That September Ford and his Conservative parliament introduced a bill brazenly using the notwithstanding clause to shrink Toronto’s city council size. The courts struck down this use, and the Conservatives dropped the bill.14
In 2021, fast approaching a federal election, the Ford government passed a bill changed the rules for election spending, with opposition particularly from unions, including the Elementary Teachers’ Federation of Ontario, which was part of the lawsuit against it. After being struck down, Ford used the notwithstanding clause to force it into effect.15
In 2022, despite the use of the clause, Ford and the Conservatives won 16 more seats, maintaining a majority government.16 They saw no consequences for their actions, politically.
Which all leads to yesterday, when the Conservatives invoked Section 33 to attempt to force back to work the striking education workers from the Canadian Union of Public Employees.17 This application overrides the freedom of association under Section 2(d) of the Charter. Section 2 contains fundamental rights, such as freedom of expression and freedom of religion.
What this demonstrates, particularly in contrast to the US where no such clause exists, is there is no systemic solution to maintaining legal rights that does not include an informed public taking action and voting to maintain those rights. Ontario's 2021 election had the lowest turnout on record at only 43.5% of eligible voters.18 Talking about "rights" can create a level of disassociation and overconfidence, as it masks the underlying truth that democracy is merely a means to reflect the values of society.19 The only way this works is if those values include voting those values. So for those in the US, make sure you do that by voting in the midterm elections on November 8. Whatever your form of democracy, it's your votes that shape it.
Legislative Services Branch. (2022). THE CONSTITUTION ACTS, 1867 to 1982. Justice.gc.ca. https://laws-lois.justice.gc.ca/eng/const/page-12.html#h-39
Canadian Charter of Rights and Freedoms. (2022). Ct.gov. https://www.cga.ct.gov/PS98/rpt%5Colr%5Chtm/98-R-0143.htm#:~:text=The%20Canadian%20Charter%20or%20Rights,by%20jury%20in%20certain%20cases.
How the right wing captured the Supreme Court. (2022, May 19). Hightower Lowdown. https://hightowerlowdown.org/article/how-the-right-wing-captured-the-supreme-court/
Cillizza, C. (2022, September 29). Trust in the Supreme Court is at a record low. CNN; CNN. https://www.cnn.com/2022/09/29/politics/supreme-court-trust-gallup-poll
Beauchamp, Z. (2022, June 24). Does Clarence Thomas’s concurrence in Dobbs herald the end of same-sex marriage and other rights? Vox; Vox. https://www.vox.com/2022/6/24/23181723/roe-v-wade-dobbs-clarence-thomas-concurrence
Supreme Court Update: West Virginia v. EPA (No. 20-1530), Biden v. Texas (No. 21-954), Becerra v. Empire Health Foundation (No. 20-1312) - Wiggin and Dana LLP — Attorneys At Law. (2022, July 5). Wiggin and Dana LLP — Attorneys at Law. https://www.wiggin.com/publication/supreme-court-update-west-virginia-v-epa-no-20-1530-biden-v-texas-no-21-954-becerra-v-empire-health-foundation-no-20-1312/
SUPREME COURT OF THE UNITED STATES. (2021). Dobbs v. Jackson Women’s Health Organization. https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
What is the notwithstanding clause? An explainer on the rarely used provision. (2022, October 31). CBC. https://www.cbc.ca/news/canada/toronto/ontario-notwithstanding-explainer-1.6065686
25 years later, parties remember Supreme Court battle over Bill 101. (2014). Archive.org. https://web.archive.org/web/20150726154927/http://vigile.net/25-years-later-parties-remember
There Is Quebec, Then All the Rest of Canada (Published 1974). (2022). The New York Times. https://www.nytimes.com/1974/07/07/archives/there-is-quebec-then-all-the-rest-of-canada-tomorrows-election-will.html
M. v. H. (recognition of same-sex spouses) - Nelligan Law. (2021, September 20). Nelligan Law. https://nelliganlaw.ca/cases/m-v-h-recognition-sex-spouses/
archives. (2000, May 15). Alberta passes bill protecting traditional marriage - The Interim. The Interim. https://theinterim.com/issues/marriage-family/alberta-passes-bill-protecting-traditional-marriage/
Elle. (2022, June 5). Asymmetrical Polarization of Politicians. Substack.com; Welcome to Elle. https://welcometoelle.substack.com/p/asymmetrical-polarization-of-politicians
Doug Ford’s Tories trigger overnight debate in latest attempt to slash Toronto city council. (2018, September 15). Canada’s National Observer. https://www.nationalobserver.com/2018/09/15/news/doug-fords-tories-trigger-overnight-debate-latest-attempt-slash-toronto-city-council
Ford government pushes through controversial election spending bill with notwithstanding clause. (2021, June 14). CBC. https://www.cbc.ca/news/canada/toronto/notwithstanding-clause-vote-ontario-1.6064952
Ontario election 2022 live results. (2022). CBC News; www.cbc.ca. https://newsinteractives.cbc.ca/elections/ontario/2022/results/
Ontario is using the notwithstanding clause to stop a school strike. Here’s what it is and how it works. (2022, November). CBC. https://www.cbc.ca/news/canada/toronto/ontario-notwithstanding-cupe-strike-1.6635564
DeClerq, K. (2022, June 3). Ontario records lowest voter turnout in election history. Toronto; CTV News. https://toronto.ctvnews.ca/ontario-records-lowest-voter-turnout-in-election-history-1.5931440
Elle. (2022, May 8). The Problem with Labels. Substack.com; Welcome to Elle. https://welcometoelle.substack.com/p/the-problem-with-labels