The academic campaign to rehabilitate s 33 of the Canadian Charter of Rights and Freedoms, aka the “notwithstanding clause”, has been going strong for the better part of a decade. It took a while to achieve escape velocity and reach the broader public discourse, but it is fair to say that this has now been accomplished. Not only is the notwithstanding clause regulary used by multiple provinces, but whenever a judicial decision involving the Charter generates any controversy, this is sure to include breathless calls for s 33 to be invoked. It happened after the Superior Court of Ontario’s decision in Cycle Toronto v Ontario (Attorney General), 2025 ONSC 4397, which struck down a law that required the demolition of some arbitrarily chosen bike lanes. It’s been happening, most recently, after the Supreme Court’s decision in Quebec (Attorney General) v Senneville, 2025 SCC 33, which struck down an overbroad mandatory minimum sentence for the possession of child pornography.
Regrettably, if not, perhaps, surprisingly, this campaign rests on a good deal of wishful thinking and misdirection, if not outright misrepresentation. It is, by now, surrounded by an entire mythology, which makes the use of the notwithstanding clause appear as something benign and indeed high-minded, without regard to either the actual reasons for it or its circumstances. This mythology is found in any number of places, from academic articles, to countless tweets, to a recent series of National Post op-eds by its devotees.
Last week, the Post published a piece by yours truly attempting to dispel some of the notwithstanding clause myths. Specifically, I address the widespread claims that
- The notwithstanding clause doesn’t override rights, but only contestable judicial interpretations;
- When they invoke the notwithstanding clause, legislatures are offering their own interpretations of rights, which are entitled to as much respect as those of the courts;
- The expanding use of the notwithstanding clause is the fault of an activist Supreme Court; and
- The notwithstanding clause is part of the Charter, so any talk of it undermining the Charter is obviously overwrought if not nonsensical.
I hope you can read the whole thing, and I’m grateful to the Post for having run it. I should say, though, that—unlike some people on Twitter and Bluesky, apparently—I am not at all surprised that they did. They were quite happy to take a piece I wrote last year disagreeing with their editorial page editor, for instance. Whatever one may think of their general editorial stance, the Post is not a party-line rag.
I have received a fair few comments, in various formats, on the piece, and want to address a couple of recurring themes here. Perhaps the most common one was that opposing the notwithstanding clause somehow makes one an opponent of democracy, of government by consent, and all such wonderful things. This is a silly talking point. Are Americans, Germans, Frenchmen, who all live under constitutions lacking an equivalent of s 33 all being trodden down by robed tyrants? Are Canadians, since after all s 33 doesn’t apply to every right in the Charter, or to the division of powers? (And yes, it is true that a law struck down on division of powers grounds can in theory be enacted by the other level of government. But sometimes there is not a snowball’s chance in hell of that happening, and that is precisely the point. Just ask Bible Bill Aberhart.)
Now, while that silliness was predictable, what I was not expecting is the ease with which trolls or troll-adjacent humans jumped to accusations of partisanship. Opposing the use of the notwithstanding clause is, apparently, a Liberal position. By my lights, thinking that is incompatible with believing that the clause is really about democracy and high-minded disagreement about constitutional meaning, which should be matters of non-partisan principle. Quite a number of my critics, it seems to me, are making my point that it’s nothing more than a partisan cudgel.
Some of them, of course, think that the problem is that constitutional meaning has come to be defined by dastardly Liberal or at least Liberal-appointed judges. But that brings me to a second theme in the comments I got: a great many of them are badly misinformed. For instance, the people who are most worked up about Senneville think it involved the Supreme Court going easy on the accused, who each had large quantities of child pornography. But that’s just not so: the Supreme Court only considered the constitutionality of the mandatory minimum, and the sentence of the actual accused was not before it at all. (There is perfectly respectable argument to be made, though one I do not agree with, that this way of deciding cases is inappropriate. But “no disguised abstract review!” isn’t quite as punchy as “Liberal judges are soft on pedos!”, so you know which way the internet leans.) Similarly, the people who object most loudly to Cycle Toronto talk about how obviously wrong it is to have a constitutional right to bike lanes, but as I have explained here, that’s not what the court decided.
And so it is with the supposed Liberal judges. It’s not always straightforward to trace invocations of the notwithstanding clause to specific decisions they are meant to overturn, but when it is, the judges involved are as if not more often Conservative appointees. Justice Layh, in Saskatchewan, who decided Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which trigged the rash of s 33 use ever since? Appointed in 2014, under Stephen Harper. Justice Morgan, who decided Working Families Ontario v Ontario, 2021 ONSC 4076, overturned by Bill 307? Appointed in 2014, under Stephen Harper. Justice Megaw, who decided UR Pride Centre for Sexuality and Gender Diversity v Saskatchewan (Education), 2023 SKKB 204, a case about trans kids that also triggered the use of the notwithstanding clause? Appointed in 2014, under Stephen Harper. Justice Gascon, the author of the majority judgment in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, whose explanation of the concept of the state’s religious neutrality is overridden by Quebec’s shameful Bill 21? You guessed it: appointed in 2014, by Stephen Harper. Yes, of course, there is also Justice Abella with her constitutional benediction of the right to strike; I’m not making a partisan point about allegedly Tory judges here! But the belief that it’s only supposed Liberal judges who need reining in with the notwithstanding clause is yet another myth.
The broader point to make here is that widespread ignorance about the facts relevant to assessing—and holding governments and legislatures accountable for—any given use of the notwithstanding claause is an additional argument for why it can never, ever be used responsibly. The check on its used is supposed to be a democratic one: because any given invocation of s 33 expires after five years and must therefore be re-authorized, if desired, with an election held in the interval, the voters are supposedly given an opportunity to restrain abuses. But if the voters know nothing much about what is going on—or worse, “know” things that simply aren’t true—that idea turns out to be a pipe dream.
And that brings me to the last thing I wanted to touch on in this post, which isn’t about the comments on my piece but another op-ed, by a rather more illustrious personage: David King, a minister in Peter Lougheed’s Alberta cabinet during the constitutional negotiations of the early 1980s, when Lougheed was one of the chief proponents of what would become the notwithstanding clause as we know and loathe it. Mr. King is worth quoting at some length:
Forty-four years ago, we expected that the notwithstanding clause might never be used, or if used at all, very, very rarely. We expected that it might be used in some rare case of a conflict between the federal government and a provincial government, if the (federal) generality of civil rights seemed inimical to the (provincial) generality of civil rights.
We expected that it might be used to protect a minority in the face of legislation beneficial to the larger community but incompatible with the needs of a smaller community. We expected that it might be used as a last resort, not as a first resort. We expected that any invocation of the notwithstanding clause would take time and allow debate, not only in the legislature but also among the public.
We expected that any invocation of the notwithstanding clause would proceed slowly, because it would be portentous.
None of these expectations have been borne out, which Mr. King attributes to “the extent to which political and governmental norms would change—for the worse—over the years”. This explanation is, at best, half-right. It was well understood in the 1780s, never mind the 1980s, “that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”. Lougheed, Alan Blakeney, and the others who demanded a notwithstanding clause as the price of their assent to the Charter, and Pierre Trudeau, who agreed to it, acted as if that lesson did not apply to Canadian legislatures, or as if reliance on ignorant voters can be an effectual restraint on power’s encroachment. Lord Acton, in his Lectures on the French Revolution, said that “[t]here is another world for the expiation of guilt; but the wages of folly are payable here below”. They are not, however, always payable by the fools. We are paying the wages of the folly of the men of 1981.
Now, of course, the expectations of those men have no bearing on the legal meaning of s 33 of the Charter. It is only the text that is law, and it would be wrong for the Supreme Court to try to “give benediction” to these expectations which were not translated into effectual—textual—restraints. But it doesn’t follow from this legal point that, on a moral or political level, these expectations do not matter to how we assess either the Charter‘s framers or, perhaps more to the point, the current politicians. After all, even though they have been handled an unrestrained power, it is stil their fault for using it. As I wrote here many years ago,
As Chekhov knew, placing a loaded rifle on the stage creates an unstable situation. A good dramatist will resolve the instability with a bang―and probably some casualties. But constitutional actors are not comedians. Even if they are put in a position where a loaded gun is within their reach, their responsibility is not to fire it, but to keep it safe if they cannot unload it, and to instruct those who follow them to do likewise. As for constitutional critics, they should not be cheering for the most theatrical resolution. They might enjoy a drama, but when the shots are fired, they are likely to be aimed at the audience.
And as for the people who think that the shots will not be fired at them, or indeed that they will always be the ones doing the firing—the bill for their folly too will come due, whether or not they personally will be the ones to settle it.
Double Aspect 
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