Section 33 of the Canadian Charter of Rights and Freedoms is part of the revised Constitution of Canada created back in 1982. It is commonly known as the “notwithstanding clause”, sometimes referred to as the override power and was included at the time so as to have the majority of provinces agree to the new constitution. The clause allows Canada’s Parliament or provincial legislatures to temporarily override certain sections of the Charter when introducing new legislation. It is unique among the constitutions of democratic countries and gives federal and provincial governments the ability to ignore most of the constitutional rights of Canadians other than the right to vote, the seating of legislatures and the House of Commons, mobility rights and language rights. One extraordinary provision is that no explanation for such a move is required. The U.S, Constitution gives no such powers to the states, but it does authorize Congress to remove jurisdiction from the federal courts. However, not since World War II has Congress mustered the requisite majority to do so.
For much of our new constitution’s history, it was rarely used by provinces (the federal government has never invoked it) and was politically regarded as an option of last resort. However, the notwithstanding clause has since been used by Alberta in 2000, and Quebec in 2001 and 2005. In addition, most Canadian provinces, including Quebec and Alberta, have their own human rights Act, which protects people in a province from discrimination in certain areas, such as employment, accommodation, and access to services, based on specified grounds (‘protected characteristics’). Recently in 2022, Ontario’s Premier Doug Ford of Ontario threatened to invoke the clause to take the right to strike from teachers but subsequently abandoned his plan due to political pressures and the threat of future court challenges.
More recently, invocation of the notwithstanding clause by provinces has to do with the introduction of so-called “parental rights” legislation, similar to that found in Florida and some southern U.S. states’. Such laws primarily govern the use the preferred names and genders of schoolchildren. In June of this year, the premier of New Brunswick, Blaine Higgs, introduced legislation which requires teachers to get the permission of a child’s parents if the child is under the age of 16. Now the issue has surfaced again in Saskatchewan. Following the lead of Mr. Higgs, Premier Scott Moe recently recalled his province’s legislature to introduce a similar bill. If passed, it will mandate parents’ consent for a number of things including the use by any pupil under 16 of a new gender-related preferred name or gender identity at school.
One expert observer noted that provinces tend to use the notwithstanding clause to feed their base the idea that we’ve gone too far in human rights and that the courts have been leading us in the wrong way. The belief is that elected officials need to capture back their power. It’s also suggested that its use has resulted in more “wedge politics.” Remember that introducing such legislation will take away the individual rights of those directly affected, such as in the above cases involving the rights of a child. Psychiatrists and social workers have noted that there are potential harmful consequences of forcing teachers to contact parents regarding such matters, especially where the child may fear a hostile reaction by their parents to gender-related matters. Where once before a child could turn in confidence to a teacher or school counsellor for information and assistance, the child may now be much more hesitant to do so. The detrimental result may be the potential emergence of social and mental health issues.
It has been suggested that in some cases the courts might ultimately end the ability of premiers and prime ministers to preemptively set the constitution aside when it comes to human rights legislation. This was the most recent case in Ontario over the right to strike by teachers. Never-the-less, the concern over the use of the Charter’s withstanding clause by provinces should remain a serious concern among Canadians. After all, who’s next to have their individual rights taken away by a government? Where does it all end? The continuing use of this provision will ultimately water down those protections afforded to us under both federal and provincial human rights laws.
FROLITICKS 
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