Notwithstanding 101
By Rebecca Brown
The notwithstanding clause is part of Canada’s Charter of Rights and Freedoms (Section 33.) It lets Parliament, or a provincial government, temporarily (for 5 years) override certain Charter rights when they pass a law. In simple terms, it’s like the government saying, “We know this law goes against some Charter rights, but we’re passing it anyway.”
It exists to allow elected governments to still have a final say in exceptional cases and this is where the issues with its use in Alberta (also Saskatchewan and Quebec) arise.
Despite its broad range of uses, many lawyers, unions, civil-rights groups, human-rights advocates, and critics across Canada have described Alberta’s use of the notwithstanding clause as an abuse and/or misuse of that constitutional tool.
Using the notwithstanding clause to end the lawful teacher’s strike prevented courts blocking the bill that overrode teacher’s fundamental Charter rights, including freedom of association, which protects the right to strike. Critics (who even included Amnesty International) have stated this to be dangerous overreach by the UCP, as it shut down lawful union activity and collective bargaining rights. This, obviously is a huge concern for other unions in Alberta, including the UNA.
The UCP did not stop there though. Soon after they used the clause again, this time against transgender youth. They restricted gender-affirming care, school supports for gender identity and participation in sports. Most lawyers and experts see this as an attack on fundamental human rights. These are Alberta’s most vulnerable children and, as they represent less than 1% of the population, it seems that this was an ideological move on the part of the Government of Alberta. Unfortunately, we know itwill result in a lot of pain, heartache, mental health problems and increased suicides in those young people who will beaffected by this bill.
Normally if a law is likely to violate Charter rights a court looks at it first. However, by invoking the notwithstanding clause first the UCP blocked any judicial decisions and court challenges in advance. Lawyers state that this has removed a key check on government power and risks undermining the rule of law.
Also, by using this clause multiple times, and in such a short period, Alberta’s government has made it less of the extraordinary failsafe it was meant to be and more of a weaponized political tool to advance their own ideology. The notwithstanding clause was supposed to be used as a last resortas a genuine constitutional necessity. When a government usesthis clause for what appears to be their own political ends itshould be of huge concern to us all, because we do not know who they will target next.
Bibliography:
Alberta uses notwithstanding clause again, on 3 laws affecting transgender youth | CBC News
When the notwithstanding clause becomes a political weapon
Stripping Away Rights Using the Notwithstanding Clause. - Alberta Views
