In recent years, provincial parliaments in Canada have increasingly used a legal mechanism known as the notwithstanding clause to suspend the constitutionally protected rights of Canadians. Often, legislation passed by invoking the clause has targeted the rights of various minority communities, such as transgender people or religious minorities. Traditionally, the only check on the clause’s use has been the threat of public disapproval and controversy. Yet, governments now regularly invoke the clause without any serious backlash or political consequences. As provincial governments chip away at Canadian’s rights, it is worth examining both how the notwithstanding clause came about, and how it could be countered. There is at least one legal tool available to the federal government that it could utilize to combat the notwithstanding clause: the constitutional power of disallowance.
Section 33 of the Canadian Charter of Rights and Freedoms, commonly called the notwithstanding clause, allows the federal parliament or provincial legislatures to override certain provisions of the Charter when passing legislation. Specifically, a legislature can suspend the fundamental freedoms outlined in Section 2, the legal rights found in Sections 7-14, and the equality rights of Section 15. For example, in 2025, the government of Alberta invoked the notwithstanding clause when passing its Protecting Alberta’s Children Statutes Amendment Act, which requires, among other things, that educators have parental consent to use a child’s preferred pronouns or to provide any education on gender identity, sexual orientation, or human sexuality. Had Alberta not used the notwithstanding clause, the law would have been struck down for violating equality-related clauses of the Charter.
Since its introduction, there have been concerns that legislatures could invoke the clause whenever they wanted, leaving the rights in the Charter worthless. In 1982, the Québec government protested the patriation of Canada’s constitution by retroactively applying the clause of every provincial law. Until 2018, Québec would be effectively the only province to successfully invoke Section 33, turning to the notwithstanding clause fifteen times during that period. The only other province to use the notwithstanding clause in legislation that was brought into force was Saskatchewan, where it was used once, in 1987, to legislate public sector workers back to work. The Supreme Court later ruled that Saskatchewan could have sent the workers back to work without relying on the clause.
The only recognized check on the utilization of the notwithstanding to abrogate Canadian’s rights and freedoms is public disapproval and the political consequences. For most of its history, this has been sufficient to discourage overzealous use of the clause. Even in Québec—where the clause has most frequently been invoked—it has not been without controversy. In 1988, when Premier Robert Bourassa sought to amend Québec’s language law in response to a Canadian Supreme Court ruling, his decision to invoke the notwithstanding clause sparked debate throughout the province. In other provinces, the threat of controversy has been enough to discourage use of the clause until recently.
Yet, in the past decade, the regular invocation of the notwithstanding clause has been normalized. Between its introduction in 1982 and 2018, the notwithstanding clause was inserted into provincial legislation only eighteen times, including sixteen times where the law came into force. From 2005 to 2018, no province tabled any legislation containing the clause. Since 2018, the notwithstanding clause has been invoked thirteen times. Provincial legislatures are increasingly comfortable using the notwithstanding clause to introduce laws that they know would otherwise be unconstitutional, and each time it is invoked, the move becomes less exceptional and public backlash diminishes.
The argument made by certain provincial premiers for the inclusion of the notwithstanding clause was that, without such a clause, the Charter would constrain the ability of legislatures to pass laws. Prior to the patriation of Canada’s constitution and introduction of the Charter, the governing ethos in Canada was one of parliamentary supremacy. While Canada’s original constitution, the British North America (B.N.A) Act of 1867, did place some restrictions on what legislatures could do, the federal and provincial legislatures had considerable latitude to legislate in their respective domains.
The addition of the Charter led to concerns that it ceded too much power to the unelected judiciary. Critics worried that the courts would “legislate from the bench” by extrapolating rights and powers from the revised constitution that they could use to strike down the laws passed by the legislatures. Consider the case of Canada’s small plastics ban. In 2021, Canada’s federal government listed all plastics as toxic substances under the Canadian Environmental Protection Act, effectively banning small plastics like straws. However, in 2023, a federal court ruled that it was unconstitutional to list all plastics as a toxic substance. In cases like these, the courts appear to substitute their judgments for elected legislators, creating significant difficulties for legislators pursuing a particular agenda.
Underpinning this argument in favour of the notwithstanding clause is the principle that the people should ultimately be sovereign through their elected representatives. Accordingly, the legislatures should have the prerogative to pursue their legislative agenda without undue interference from the courts. The justification for the notwithstanding clause is that it safeguards democratic legitimacy.
However, a longstanding concern for democratic theorists is the threat of a tyranny of the majority. If the democratic majority has the final say on every issue, what is preventing them from voting to undermine the rights of a minority? Many democracies have answered this question by introducing constitutionally enshrined fundamental rights that cannot be overturned by standard legislation and that are upheld by the judiciary. The Charter was meant to be a statement of the fundamental rights that Canadians possess, but the notwithstanding clause is often used to undermine them. How then might Canada’s federal government prevent this from happening? One option is disallowance.
Disallowance is a constitutional power described in Canada’s original constitution, the B.N.A. Act, and retained in its existing constitution. The Governor General in council has the power to overrule federal or provincial legislation, invalidating the statute. Canada’s Governor General exercises this power on the advice of the federal cabinet, including the Prime Minister and their cabinet ministers. The notwithstanding clause cannot give legislation immunity from being overruled in this way, as it can only suspend some rights in the Charter, not other constitutional mechanisms. Consequently, the federal government can disallow laws that invoke the notwithstanding clause to counter them.
Opponents of this strategy might object that the disallowance and reserve powers are undemocratic since they are exercised by the Governor General in council as the representative of the King of Canada. However, the Governor General can only exercise this power on the advice of the federal cabinet, who are themselves elected. Early in Canadian history, when disallowance powers were exercised, they were almost always exercised at the discretion of elected officials, such as the Prime Minister. Thus, the use of disallowance is no more undemocratic than the use of the notwithstanding clause.
Some have argued that the disallowance power cannot be used because it has become a dead letter. The claim that a constitutional provision loses its force simply because it has not been invoked for some time is mistaken, however. Take, for instance, Brian Mulroney’s invocation of Section 26 of the B.N.A. Act to enlarge the Canadian Senate in 1990. Facing the possibility that his government’s bill to introduce the new Goods and Services Tax (GST) would fail to clear the Senate, Mulroney used the obscure constitutional provision to add eight new seats to the Senate. Section 26 had never been used, and some constitutional scholars argued that it was therefore a dead letter by convention. Nevertheless, Mulroney succeeded in utilizing the clause that had lain dormant for a hundred years.
Thus, Canada’s federal government has the tools to push back against provincial governments who would use the notwithstanding clause to curtail Canadian’s rights. Although critics of this strategy have claimed that exercising the disallowance powers could lead to a constitutional crisis, there is already a constitutional crisis brewing due to the way the notwithstanding clause is being utilized. The only way to avert greater catastrophe might be for the federal government to put its foot down.
Eric Wilkinson
Eric Wilkinson is a Postdoctoral Research Fellow at the University of British Columbia, and Series Editor for the APA's Law & Philosophy series. He is the guest editor of a forthcoming special issue of the journal Dialogue: Canadian Philosophical Review, entitled "Envisioning Canada," which will appear in 2026. His interests include meta-ethics, normative ethics, and political philosophy.
