No, The Notwithstanding Clause Isn’t Unconstitutional

Early yesterday morning, the Alberta government invoked the notwithstanding clause to end an almost four-week strike by 51,000 teachers.

Some have reacted with outrage, claiming that using the notwithstanding clause is unconstitutional.

It's not, of course, unconstitutional to use a part of the Constitution!

The "notwithstanding clause" is Section 33 of The Canadian Charter of Rights and Freedoms, which itself makes up part of our Constitution.

It is a cornerstone of Canada’s constitutional framework, designed to protect the provinces and all Canadians from judicial overreach.

It reads:

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

In short, this section of the Charter allows provinces (and the federal government) to ignore other parts of the Charter when passing laws, if they explicitly state that they are doing so.

Now, on the face of it, a government ignoring people's rights sounds bad - and that explains much of the opposition to its use.

But dig a little deeper, particularly into the reasons why the clause exists, and you'll see it's more complicated than that.

See, even if we all agree that all the rights in the Charter are good as they're written and should always be respected, what do we do if people disagree on the meaning of those words and how they should be translated into laws?

You see, the Canadian Constitution gives the federal government unilateral power to appoint judges whose job it is to interpret the Charter and the Constitution.

And different judges have different conceptions of their roles.

Some judges believe in what is commonly called textualism.

This is a more "conservative" approach to the role of a judge, and these judges generally believe that it is their job to adhere to the Charter and the Constitution as the actual text as it is written.

They say the Charter and the Constitution mean what they say, and if you want to change the meaning, go through the amendment process to change what it says.

Other judges take a more "progressive" approach and follow what is generally known in Canada as the living tree doctrine.

These judges believe that they can reinterpret the actual words in the text to change the meaning to be what those judges believe the original writers of the words meant the words to say, rather than what the words actually say.

As you can probably tell, we agree with the former idea that words mean what they mean, and you can't just reinterpret something after the fact.

Now, that's not to say the Constitution or Charter should never change - in fact, it absolutely should change over time.

But we think those changes should happen according to the proper amendment process that gives the people and their elected representatives a say, rather than being simply decided by a few unelected judges.

Of course, if you're a progressive Prime Minister, and you have the power to appoint the judges who make those decisions, it's far easier to just appoint some judges who'll re-interpret the Constitution to mean what you wish it had always meant all along, than it is to actually go through all that annoying and complicated democratic process of amending it, right?

And so, over the course of a number of decades, the Canadian Constitution has changed significantly, and not just through normal amendments but also through reinterpretations by courts.

Crucially for today's discussion, these reinterpretations can (and often are designed to) change the balance of power between the federal government and the provinces.

And this isn't news - in fact, everyone realized this was a potential problem when the Charter was first being proposed in 1980.

The provinces - especially the western provinces - were very concerned about agreeing to the Charter, as they were worried specifically about the power it would give the federal government, and the courts, to reinterpret the things they were negotiating.

It was Alberta Premier Peter Lougheed who proposed the compromise: Section 33 - the notwithstanding clause.

He said that the notwithstanding clause “allows effective political action on the part of legislators to curb an errant court”.

In other words, it allows elected representatives of the people, in their Legislatures, to override judicial rulings when they believe a court has gone beyond its proper role.

In doing so, it ensures that debates over rights occur through democratic processes, not unilateral reinterpretation by the courts.

And, to be clear, the provinces would have never agreed to the Charter without the notwithstanding clause.

Quite literally, there would be no Charter without the notwithstanding clause.

Ironically, Alberta NDP Leader Naheed Nenshi claimed yesterday that he had known Premier Lougheed, and Premier Lougheed would never have supported using the notwithstanding clause.

But, not only was it Premier Lougheed who proposed the inclusion of the clause in the first place, he also specifically talked about using it in relation to a strike!

In 1987, his government was prepared to use the notwithstanding clause to shield their legislation preventing hospital workers from striking, had the Supreme Court of Canada ruled that the legislation was contrary to the Charter.

Which brings us to today's dispute, and the claim by some that the problem is that the Alberta government should have passed their legislation without invoking the notwithstanding clause, allowed the legislation to be taken to court, and only used the notwithstanding clause had it been found contrary to the Charter.

(Though these opponents would have no doubt opposed its use then, too).

But, the Charter doesn't mean the same in 2025 as the Charter meant in 1987.

It has changed.

And not via amendments but via reinterpretations by judges, as predicted.

For years - including in the case of Peter Lougheed's legislation - the Supreme Court ruled that the Charter meant one thing.

Then, in 2015, the Supreme Court decided it means the opposite.

Did anything change in the text of the Charter?

No, of course not.

All that changed was that there were different judges on the court, who believed that they should be allowed to change the meaning of the words, even though the words hadn't changed.

Suddenly, overnight, that one ruling overturned decades of precedent, creating a “new” right that hadn't existed before, and was not written in the Charter.

The judges just decided that it now existed.

Maybe you agree with the court's 1987 position, or maybe you agree with the court's 2015 position.

But this isn't actually a debate about a strike at all.

It's about how we make decisions as a society.

After all, the pendulum can swing both ways.

Prime Minister Jean Chrétien once noted his support for the notwithstanding clause based on how it could allow a federal government to override an errant court that wanted to adopt a more American-style absolutist approach to free speech.

Alberta’s government disagrees with the court's 2015 interpretation and is using Section 33 to effectively restore the court's 1987 position.

Some will call this heavy-handed.

But, it protects the provinces’ ability to govern according to the values of their citizens and preserves the delicate balance of power that made the Charter possible.

And if you prefer the 2015 interpretation - well, go get working on a constitutional amendment to make that happen!

After all, as we said before, judges are not elected.

If you don't like something a government does, you can vote them out every few years.

But, if you don't like a judge's rulings... tough luck.

In the end, Section 33 is not an attack on rights - it is one of the few tools that ensures democratic accountability in the interpretation of our Constitution, and helps defend the provinces against an overreaching federal government.

Of course, let's not forget that it was just last month that the federal government asked the Supreme Court to consider whether the use of the notwithstanding clause by provinces should be restricted.

You can bet that the judges appointed by the federal government will be pretty eager to side with the federal government on that issue, and now the federal government has allies in Alberta, too.

We disagree.

We think the notwithstanding clause is important.

We think it protects provincial jurisdiction and helps ensure the Constitution is followed.

If you agree, please stand with us in defending the notwithstanding clause.

Share this message, talk to your friends and family, and help others understand why Section 33 is essential.

And, if you are able, please consider making a donation to support our work on this issue:

Thank you for all your support so far!

Peter McCaffrey
President
Alberta Institute