The notwithstanding clause, also referred to as section 33 of Canada’s Constitution, has been described as a ‘uniquely Canadian invention’. This clause provides provincial and federal legislatures the ability to pass legislation that either pre-empts judicial review or overrides judicial decisions that concern certain rights entrenched in the Canadian Charter of Rights and Freedoms. Any legislation that includes a notwithstanding clause must also contain a five-year sunset clause – whereby the use of the clause must be renewed every five years.
Despite the sweeping powers available to governments through the notwithstanding clause, it has rarely been used: only fifteen times in the thirty-seven years since the adoption of the Charter. This has resulted in the clause effectively going into constitutional hibernation – with many Canadians unaware of its existence.
This period of constitutional hibernation of the notwithstanding clause changed in 2018. On October 22, 2018, Ontario Premier Doug Ford announced he would be using the Canadian Charter’s notwithstanding clause to interfere in the already commenced Toronto City Council election. Ford went so far as to say that he ‘won’t be shy’ about using the clause in the future. Several months later, Quebec Premier Francois Legault used the notwithstanding clause in legislation to ban the wearing of religious symbols in public service roles. As a result, recent actions of both Ford and Legault reignited the debate over the notwithstanding clause.
This renewal of the debates surrounding the notwithstanding clause, mirrored in many ways the scholarship that already exists on the notwithstanding clause – with a central focus on the balance of power between the legislative and judicial branches. Legal scholars, such as Stephen Gardbaum, Christopher Manfredi and Peter Russell, have all celebrated the inclusion of the notwithstanding clause in the Charter as an important tool for counter-majoritarianism – even going so far as to suggest ways in which to increase its use.
However, this focus on the balance of power both by the Canadian public and the scholarship responses to the notwithstanding clause seems to have overlooked a fundamental flaw within the structure of the notwithstanding clause – the ways in which minority groups are uniquely vulnerable to its invocation.
A key example of this can be seen through examining the ways in which minority groups are uniquely vulnerable to the notwithstanding clause is through examining the structural safeguard of the five-year sunset clause. A key example of this unique vulnerability of minority groups to the notwithstanding clause is seen through the examining of the structural safeguard of the five-year sunset clause. The five-year sunset clause provides democratic protections by requiring a reconsideration of the notwithstanding clause every five years (i.e. within each election cycle).
Although this democratic protection may enable the public to hold governments accountable for their invocation of the notwithstanding clause, it provides few protections for minority groups. First, minority groups, by definition, lack meaningful representation in the legislature and have minimal impact through the ballot box. In some instances, this could be attributed to lower demographic representation or barriers in accessing the ability to vote. Second, there are minority groups that have no ability to access the ballot box due to their status as non-citizens. This includes refugees, permanent residents and other non-citizens, such as international citizens who have been detained. Due to these issues of demographics or access, minorities are often unable to meaningfully influence elections – thus making the structural protections provided by the five-year sunset essentially ineffective for them.
This in turn, reveals the paradox of the notwithstanding clause: when minority groups are most in need of the protections of judicial review from government rights infringements, primarily due to their inability to access democratic protections – the notwithstanding clause can be invoked to completely circumvent this process. Although the creators of the Charter did seek to create protection mechanisms to add a level of accountability to the invocation of the notwithstanding clause, these protections, particularly those relying on democratic elections, were not written with consideration of the specific vulnerability of minority groups. This is a structural flaw within the notwithstanding clause that seems to have been overlooked by the current legal scholarship that seeks to focus on the ways to increase its invocation rather than examine the potential disastrous impacts it could have on some of the most vulnerable in Canadian society.