The opinions expressed in this blog are those of the author and do not necessarily reflect those of the Observatory on Populism in Canada.
Emily Laxer
Saskatchewan Premier Scott Moe’s government recently passed legislation that uses the notwithstanding clause to allow parents to withhold consent for school staff to use their child’s preferred gender-related name or identity. In deploying the clause, Moe joins a growing list of premiers who are taking advantage of their parliamentary majorities to circumvent the judiciary and enact laws that many experts view as eroding fundamental rights. Populist narratives portraying the notwithstanding clause as a tool for enacting the democratic will of the “people”—against the “elites”—play a key role in justifying these efforts.
The notwithstanding clause allows federal and provincial parliaments to override sections 2, and 7 through 15, of the Charter of Rights and Freedoms for up to five years. Introduced to secure provinces’ support for the 1982 Charter of Rights and Freedoms, the clause was envisioned by its architects as an exceptional measure, only to be used in highly unusual circumstances. Indeed, apart from its repeated symbolic use by Québec’s provincial government between 1982 and 1985, the notwithstanding clause was invoked just four times prior to 2000.
Yet, in the last five years alone, the clause has been credibly invoked (though not always wielded) seven times by governments in Ontario, Québec, New Brunswick, and now Saskatchewan.
The first-ever Ontario Premier to invoke the notwithstanding clause, Doug Ford used it in 2021 to sidestep challenges to Bill 307, which restricts third party advertising for 12 months preceding elections. Ford’s government also threatened, but ultimately did not use, the clause on two additional occasions: in 2018, to circumvent objections to Bill 5, which diminished the size of Toronto’s City Council; and in 2022, to impose a contract on Ontario’s education support workers and override their right to strike (Bill 28). In justifying these (actual or attempted) uses of the clause, Ford’s government cited its commitment to protecting the interests of the “people” as “taxpayers” against those of “elites” and “special interests”. On numerous occasions, Ford himself alleged, though without compelling evidence, that the policies in question reflect “what constituents want”.
Invoking the notwithstanding clause has also become a regular habit of Québec’s Coalition avenir Québec (CAQ) government, which used it in 2019 to prohibit certain public sector employees from wearing religious signs on the job (Bill 21), and in 2021, to protect its language reforms bill (Bill 96) from Charter challenges. In both instances, the CAQ justified its use of the clause by arguing that parliament, and not the judiciary, adequately represents the “people of Québec”. “The courts”, according to Simon Jolin-Barette, the Minister in charge of both bills, “are there to interpret”.
Circumventing the judiciary in the name of the “people” has also become a prevailing strategy of governance in Alberta. In December 2022, Danielle Smith’s United Conservative government passed the Alberta Sovereignty within a United Canada Act, which empowers the Alberta government to disregard federal laws that it deems either outside federal jurisdiction or otherwise “harmful” to Albertans. Critics argued that the bill breached the courts’ jurisdiction, therefore violating the separation of powers. Yet, Smith insisted her government’s actions appealed to Albertans, who by and large are frustrated by Ottawa’s “overreach”, particularly in economic matters, and want a government that will “stand up” to Trudeau’s Liberals. In her words: “we know that Albertans want us to act on this”. Such statements contradict polls showing that a majority of Albertans thought the legislation was a “bad” or a “very bad” idea.
In passing its Parents’ Bill of Rights, the Moe government is borrowing from this playbook, using populist language to discredit the courts and justify limiting the rights of some in favour of those of others. When a Regina judge issued an injunction in late September to pause the legislation, citing concern for children’s mental health, Moe expressed his dismay at the “judicial overreach of the court”, emphasizing that the policy “has the strong support of a majority of Saskatchewan residents, in particular, Saskatchewan parents”. He then vowed to “pass legislation to protect parents’ rights” by recalling the legislature and tabling a bill that includes the notwithstanding clause.
As it turns out, most Saskatchewan residents disagree with the inclusion of the notwithstanding clause in Moe’s Parents’ Bill of Rights. Apprehension over provinces’ emboldened use of the clause is also growing across the country. Polls by Angus Reid show that 58 percent of Canadians are “concerned” or “very concerned” about the mounting use of the clause, with 55 percent wishing to see it “abolished”.
In accelerating their use of the notwithstanding clause, provincial governments are claiming to be in lockstep with the Canadian “people”. Yet, the main gains seem to be for governments themselves, as they erode checks and balances and gain more purchase over the determination of Canadians’ fundamental rights and freedoms.
Emily Laxer is Associate Professor of Sociology at York University’s Glendon Campus, and the York Research Chair in Populism, Rights, and Legality.