Barring Québec and Saskatchewan, the powerful notwithstanding clause has been rarely used for over 35 years by Canada’s provinces.
The clause was negotiated in order to win provincial support for the Charter of Rights and Freedoms, and it allows a local government to temporarily override basic Charter human rights and legal rights.
Past Instances Of The Clause Being Considered
Some of the previous occasions in which the clause has been considered or actually invoked by Canadian provinces are as follows:
- Saskatchewan is only province to have proclaimed a bill invoking the notwithstanding clause. In 1986, Premier Grant Devine invoked it to protect a back-to-work law from Charter scrutiny by the Supreme Court.
- Yukon had proposed a bill to invoke the bill in order to protect a land development measure but it was never proclaimed.
- Alberta considered using the clause when It wanted to deny compensation to victims of forced sterilization.
- A private member’s bill in Alberta, introduced with the support of the government, wanted to invoke the notwithstanding clause in order to block same-sex marriage. This was however pointless since provinces do not have Constitutional jurisdiction regarding the definition of marriage.
Québec has invoked the notwithstanding clause a number of times but not in recent years as it was not included in a 1981 deal in which premiers resistant to the Charter were offered the notwithstanding clause in exchange for accepting a stipulation that it must have a five-year sunset clause.
Ottawa and Ontario won the concession to override Charter rights but would have to be careful since the governments would need to successfully defend the move in the next election.
Two States Considering Invoking The Clause Today
There are recent indications that Québec might use the clause to implement its controversial niqab law.
Saskatchewan could also possible invoke the notwithstanding clause a second time in regards to its Bill 89 which seeks to further protect “denominational schools,” all but one of which are Catholic.
This bill was introduced as response to the Theodore case and it seeks to give religious schools the right to recruit from public schools.
Under the Theodore case , Judge Donald Layh asked the provincial government to stop funding non-Catholics going to Catholic school. His ruling drew upon the Supreme Court’s Saguenay principle and said that the state must be neutral, noting that the freedom of religion under the Charter required it to neither “help nor hinder” religion.
The judge ruled that allowing a constitutionally privileged “denominational” Catholic school, receiving taxpayer funding to gain students not belonging to that denomination violates the Charter since it amounts to governmental “help” to a Catholic school.
According to Saskatchewan Premier Brad Wall the use of the notwithstanding clause will reaffirm his government’s commitment to fund partially around 26 faith-based schools not sheltered by the Constitution.