The Notwithstanding Clause - What You Need to Know

The Canadian Charter of Rights and Freedoms (the “Charter”) forms part of the Constitution of Canada. It is a foundational document which enshrines basic rights and freedoms guaranteed to everyone in Canada including, but not limited to:

·         Fundamental freedoms such as the right to choose your religion, the right to have your own beliefs, opinions and to be able to express them;

·         Equality rights, such as the right to be equal before and under the law without discrimination based on traits such as your age, mental or physical disability; and

·         Legal rights such as the right to privacy, the right to unreasonable search and seizure by the state, the right to be deemed innocent of a crime until proven guilty and the rights to life, liberty and security of the person.

Notwithstanding that these rights are constitutionally protected under the Charter, a province may temporarily override them by invoking the NWC. The NWC is found in Section 33 of the Charter. It allows a provincial legislature to pass a law that temporarily supersedes certain Charter rights, such as those listed above. This override expires after 5 years unless the government chooses an earlier expiration date. The government can continue to re-enact the override for an additional 5 years, but it must do so explicitly and openly.

When a new law is passed using the NWC, it can only affect rights going forward, not backwards: the new law can limit rights in the future, but it cannot take away or change rights related to things that have already happened.

Why was the NWC included in the Constitution?

When the Charter was being drafted, there was much debate concerning the division of powers: how much power could the federal government wield over the provinces? And what checks and balances should be in place to guarantee the provinces a degree of authority over provincial affairs?

The provinces argued that a NWC was necessary to prevent political power from shifting to judges through the judicial interpretation and enforcement of the Charter. The federal government, meanwhile, was concerned that a NWC would be used to trample rights guaranteed under the Charter. Ultimately, the NWC was included as a concession to the provinces in exchange for their support in ratifying the Charter.

What happens when the NWC is applied?

The NWC has been invoked by Quebec, Saskatchewan, Alberta, and Ontario, usually in exceptional circumstances.

As a recent example, in 2022, the Ontario government was engaged in a labour dispute with education workers’ unions over wages. After rejecting the union’s proposed 11.7% increase to address rising inflation, the Ontario government refused to negotiate unless a planned strike was cancelled. When workers rejected the government’s limited wage offer and went on strike, the Ontario government responded by passing legislation to prohibit the strike and invoked the NWC to override the workers’ Charter rights. As later polling showed, the Ontario government’s decision to invoke the NWC was deeply unpopular with Ontarians and it ultimately proved to be an unsuccessful tactic. Despite the new legislation restricting their right to do so, the education workers proceeded to strike anyways. Within less than a week, the Ontario government repealed the legislation and returned to the bargaining table with the union.

As a further example, in 2019, the Quebec provincial government utilized the NWC to pass Bill 21. Bill 21 prohibits public sector employees in positions of authority from wearing religious symbols while at work. This includes restrictions against wearing Christian symbols such as crucifixes. Without the application of the NWC, this Bill would violate the Charter rights guaranteeing the freedoms of belief and expression. Opponents of this law brought a court challenge to oppose Bill 21, arguing that it is unconstitutional and discriminatory. The law was upheld by the Quebec Court of Appeal and is scheduled to be heard by the Supreme Court of Canada in March 2026.

What are the implications of using the NWC?

As noted above, when provinces invoke the NWC to pass legislation that impedes the rights guaranteed to Canadians under the Charter, numerous political and legal challenges invariably arise.

 Politically, a province may face public backlash, erode political capital, and increase tensions between the federal and provincial governments.

 From a legal perspective, invoking the NWC usually leads to judicial challenges. Here in Alberta, where the NWC has been invoked four times during the current legislative sitting, multiple lawsuits have already been filed against the Alberta government (by claimants including the Alberta Teachers’ Association, the Canadian Medical Association, Egale Canada and Skipping Stone, and multiple Albertan physicians and affected citizens) for violations and infringement upon Charter-protected rights. These claims have not yet been decided.

Historically, the Courts of other provinces have reached differing conclusions when reviewing the use of the NWC in controversial legislation. The Quebec Court of Appeal held in Organisation mondiale sikhe du Canada c. Procureur général du Québec that the Courts do not have the authority to review a law passed under the NWC. In contrast, the Saskatchewan Court of Appeal held in Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity that Courts retain the authority to assess the constitutionality of legislation enacted under the NWC and to determine whether or not it violates protected Charter rights.

Conclusion

At present, the Government of Alberta’s invocation of the NWC remains the subject of several ongoing legal challenges. Although historical cases from other provinces’ use of the NWC are not binding on the Alberta courts, they remain instructive as this area of law continues to develop. The Supreme Court of Canada’s upcoming decision scheduled to be heard in March 2026 is expected to provide determinative guidance on the scope and limits of the use of the NWC.

Moreover, it’s becoming increasingly clear that the shockwave resulting from repeated use of the NWC extends beyond the Courts and ripples across the public consciousness. While Albertans await the Courts’ decision on the legal ramifications of invoking the NWC, the current Alberta government continues to face significant political consequences. And as the Court in Organisation mondiale sikhe du Canada observed, even if the new legislation enacted under the NWC is protected from invalidation by the Courts, “the electorate holds the ultimate power to defeat any government that has used (or abused) the override power conferred on it.”