GOVERNMENTS USING THE “NOTWITHSTANDING CLAUSE” TO OVERRIDE FUNDAMENTAL FREEDOMS AND CONSTITUTIONAL RIGHTS

The Alberta Government has used the “notwithstanding clause” (set out in s.33 of the Constitution Act, 1982) to legislate an end to the recent Alberta teacher’s strike. This action is the latest in a series of enactments by several provincial governments invoking the notwithstanding clause to protect controversial legislation from being declared by the courts to be invalid on constitutional grounds, namely that the legislation infringes fundamental freedoms and constitutionally protected rights set out in the Canadian Charter of Rights and Freedoms.

The frequent use of the notwithstanding clause by provincial governments is not what was contemplated in the 1981-1982 federal-provincial negotiations which patriated our constitution and created the Canadian Charter of Rights and Freedoms.

One of the rationales for including the notwithstanding clause in the Constitution Act, 1982 was that governments would hesitate to use it because the public would not accept having their rights infringed or eroded.

Instead provincial governments have normalized the use of the notwithstanding clause and appear to be using it to override the rights of minorities, such as transgendered children, religious minorities and unionized workers.

There are now two court cases before the Supreme Court of Canada asking the court to further consider and interpret invocations of the notwithstanding clause by the current governments in Quebec and Saskatchewan. In our next discussion, we will consider the issues in these cases and what impact they will have on the use of the notwithstanding clause.

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