Yet why does invoking the clause no longer seem politically taboo?

Tom Axworthy says he’s no longer surprised when he learns that a provincial government has invoked a clause in the Canadian Charter of Rights and Freedoms to overturn or preempt a court decision.

“I think a few years ago I was surprised, and now I’m resigned,” Axworthy said. Principal Secretary to former Prime Minister Pierre Trudeau, who advised Trudeau during the constitution consultations that led to the creation of the Charter of Rights and Freedoms.

But Axworthy, who is currently chair of public policy at Massey College, lamented that the use of the controversial clause, once seen by many as a political taboo, has become more frequent in recent years, something he attributes in part to the rise of populism.

“We’re in an era where it seems there are some prime ministers who have particularly populist leanings,” he said. “Their base is the most important. And old norms and barriers seem to be falling away or becoming much less of a barrier.”

Despite the Prime Minister being more open to using this clause, concerns have been raised by some legal experts, who worry that it will now be used as a tool to crush minority rights. Still others argue that the courts have gone too far, and that the clause is nevertheless a legitimate constitutional measure used by elected leaders.

David Schneiderman, a law professor at the University of Toronto, echoed Axworthy’s comments that populism is a factor in its increasing use, and “which is perceived as a threat to dominant cultural majoritarian values.”

Just last week, Alberta Premier Danielle Smith invoked the clause despite three pieces of legislation related to transgender youth and adults. This came about a few weeks after Smith used this clause when the government introduced legislation to force striking teachers to return to work.

Meanwhile, Ontario Premier Doug Ford, who has also used the section, recently mused that he would use it again for legislation that would make information on the sex offender registry open to the public.

Section 33 – known as the notwithstanding clause – allows the Prime Minister or Prime Ministers to overrule decisions on legislation that judges have determined would violate sections of the Charter for a period of five years.

This section can override certain sections of the Charter – including section 2 and sections 7 to 15, which relate to fundamental freedoms, legal rights and equality rights – but it cannot be used to override democratic rights.

It has been used at the provincial level, including Saskatchewan, quebec And OntarioBut no federal government has ever used this clause to pass a law. This clause has been used mostly in Quebec, where it was included in every law from 1982 to 1985 as a political protest.

However, it was initially used sparingly by the English-speaking provinces. But Lydia Miljan, a political science professor at the University of Windsor, says there is renewed interest in the segment between 2018 and 2023, after a 13-year hiatus.

become more generalized

meeting wrote a report For the Fraser Institute where they found that the use of the clause has become more normalized as some premiers now see it as a legitimate tool when governing.

But he also found that there is no possibility of political reaction if this section is invoked.

“At the time when someone invokes it, it’s like ‘Oh my God, they used the nuclear option, how dare they?’ They will regret the day. You have all that kind of…resentment,” she said.

“Unfortunately, governments do not really have to face the consequences of invoking this section before an election campaign, at least they have not so far.”

In early 2017, Saskatchewan used it to overrule a lower court ruling on funding for non-Catholic students in Catholic schools. And since then, other provinces started using it more regularly.

Ford used this clause to impose limits on third-party election advertising in 2021. They used it again in 2022 to prevent a strike by education workers, but then, after public backlash, canceled its use. However, he has since thought about using it for other laws.

Meanwhile, two years ago, Saskatchewan Premier Scott Moe invoked the clause despite a law that prevents children under 16 from changing their name or pronouns in school without parental consent.

Seen as a tool of ‘last resort’

Miljan writes in his report that at the time it was introduced, the expectation was that the clause would be used only in extreme cases of judicial activism that went against prevailing popular opinion.

He said, “The Prime Minister who was involved in including this clause in the Constitution certainly saw it as a last resort.” Kerry Frock, who is an associate professor of constitutional law at the University of New Brunswick.

“It was not anticipated that it would be used, in a way, to thwart the charter, to be antithetical to the charter.”

Schneiderman said the prime ministers at the time had the early 20th-century U.S. Supreme Court in mind and were concerned that Canada’s top court could strike down all kinds of social and economic laws.

He said, “If the courts intervene in ways that actually thwart important social policy measures, the section will still be available.”

Geoffrey Siglett, director of the UBC Research Group for Constitutional Law, co-wrote Despite this a research paper on the use of clause. The study found that the clause became “a partisan tool to oppose centralizing power decisions” as conflict between conservative provincial governments and Justin Trudeau’s liberal federal government increased.

However, the study also found that the use of this section increased as the rate of striking down of provincial laws by the Supreme Court of Canada was increasing.

“So (the provinces) are using the notwithstanding clause as their mechanism to insert their views about the Charter into the conversation,” Siglett said.

Schneiderman said that in principle he is not against the use of this section, but it all depends on what it is being used for.

“If the courts were issuing decisions that interfere with important and valuable social policy, I think that’s fine. But what I see here is governments using Section 33 to limit the rights of people who are already marginalized.”

But Siglet said it’s an issue Democratically elected legislatures disagree about Charter rights, as do the courts. Pushed the envelope on many of these rights questions.”

He said, “When people say that the legislature should be very careful while using Section 33, it should use it only occasionally otherwise it is a nuclear option. That is fine.”

“Why would we expect the legislature not to be more aggressive in responding and countering those types of decisions that invade its jurisdiction?”

Miljan echoed Siglett’s comments that the courts are reading rights into the Charter, displacing the role of legislators.

“In terms of policy making, you could say the provinces have a legitimate case that they are elected officials and should be setting policy, not the courts.”