The notwithstanding clause being used by Saskatchewan, explained

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On Thursday, Saskatchewan Court of King’s Bench Justice Michael Megaw temporarily blocked a provincial policy requiring parental consent for children up to 16 who wish to change their names or pronouns in schools. Premier Scott Moe quickly announced he would recall the legislature so the government could invoke the notwithstanding clause to protect the policy from the possibility of a constitutional ruling striking it down. Writer Sean Fine explains the ins and outs of the controversial, seldom-used clause.

Why does the Charter of Rights have a notwithstanding or opt-out clause?

The clause reflects fears that judges would overrule the popular will, using their new power under the Charter to strike down laws based on their content. Three Western premiers proposed the clause at a first ministers conference in 1981 so legislators could have the last word. “We needed to have the supremacy of the legislature over the courts,” Alberta premier Peter Lougheed said, citing the experience of the United States, in which courts had struck down legislation limiting work hours and the use of child workers. Mr. Lougheed was one of two Progressive Conservative premiers (the other was Sterling Lyon of Manitoba) who joined with a New Democrat (Allan Blakeney of Saskatchewan) to propose the clause. So it was a compromise between political power and judicial power – a kind of “safety valve,” as the justice minister of the day, Jean Chrétien, viewed it.

How often has the clause been used?

Outside of Quebec, it hasn’t been used often – though that appears to be changing. Quebec invoked it in every law it passed between 1982 and 1985, after it chose not to sign on to the Charter. It used it again in 1988 to protect a language law related to commercial signs. The province invoked it in 2019 to shield Bill 21, which forbids police officers, prosecutors, school teachers and other public servants from wearing religious items on the job, from legal challenges. In 2022, the clause was used as part of French language laws.

Uses (or attempted uses) have also occurred in Yukon, Saskatchewan and Alberta. Alberta tried to use it in 2000 in defining marriage as exclusively between a man and a woman. (The definition of marriage is federal, so the use of the clause had no legal effect.) Yukon passed a law (but didn’t proclaim it in force) allowing the Council of Yukon Indians to appoint persons to various boards, notwithstanding the Charter’s equality clause. Saskatchewan used it to protect back-to-work legislation in 1986. It announced in 2017 it would use the override clause to defy a court order that said the government could not fund non-Catholic students to attend Catholic schools.

In 2022, Ontario’s Doug Ford invoked the notwithstanding clause when he introduced back-to-work legislation for education assistants and others. In 2021, he invoked it to override a court ruling that tossed out new rules limiting third-party political spending for a full year before the official campaign period. And in 2018, he threatened its use after a judge struck down his reduction of wards in Toronto’s civic elections. (That ruling was overturned on appeal.)

Why don’t legislators take the opportunity more often to have the last word?

It’s partly because the clause has a built-in restraint: The opting out lapses after five years, unless renewed. That means that, roughly every election cycle, a government that wished to renew it would revive the public controversy over whatever law was at issue. But a bigger reason is that the Charter of Rights has become widely popular. Even if some decisions are highly controversial, the prevailing notion has been that using the opt-out clause is disrespectful toward the Charter itself. And there may be alternatives, such as rewriting the law to take into account a court’s objections.

How controversial is Mr. Moe’s use of the opt-out on an issue of children’s rights and parental consent?

Geoffrey Sigalet, who teaches law at the University of British Columbia’s Okanagan campus, says it’s okay to use the opt-out where people reasonably disagree over rights claims. “The more indeterminate and reasonable the disagreement about Charter rights, the more reasonable it is to use Section 33. This would prima facie appear to be a reasonable use to legislate Saskatchewan’s views about the importance of parental rights against competing (and contested) Charter claims.”

Jamie Cameron, a law professor emeritus at Osgoode Hall Law School in Toronto said she disapproved of the use of the notwithstanding clause in all circumstances and finds it especially egregious when the rights of vulnerable individuals are at risk. “This turn to the override in these circumstances is extremely concerning. One can only hope for immediate and strong resistance to the Premier’s announcement that leads to the reversal of a decision to override constitutionally protected rights, as has happened on other occasions.”