This is a repost of feature that first ran in October 2017.
The notwithstanding clause (section 33 of the Constitution Act) is exactly as strange as it sounds: It’s a magical section of the Canadian constitution that allows provincial governments to simply ignore a key section of the constitution if they don’t like it.
The only rule is that the governments have to first announce that they’re doing it. Specifically, they have to stand up in their legislature and announce that they’re going to pass an act “notwithstanding” whatever it says in the constitution.
What’s most surprising about the clause is that it allows provinces to override what are arguably the most important parts of the constitution: The “fundamental freedoms” and “legal rights” of Canadian citizens.
Freedom of religion, freedom of association, freedom of the press, protections from arbitrary imprisonment and search, “the right to life, liberty and security of the person” — all of these can technically be ignored by a provincial government provided they announce it first.
Saskatchewan Premier Brad Wall talks to reporters soon after the Saskatchewan government said it would invoke the notwithstanding clause of the Charter of Rights and Freedoms.
To be sure, the Constitution does insert a time limit on how long a province can get away with this. “A declaration … shall cease to have effect five years after it comes into force,” reads the clause.
However, this is easily overridden by the fact that the province can simply “re-enact” their constitution-flouting declaration.
Naturally, other democratic countries don’t this. As our own Library of Parliament notes in a summary, the idea of building an escape clause into a human rights code “appears to be a uniquely Canadian development.”
The Constitution of Japan specifically states that the document overrides every other “law, ordinance, imperial rescript or other act of government.” It’s a similar deal in South Africa, where the constitution is held as “supreme” and any other contradictory law is declared “invalid.”
The U.S. Constitution, which is taken particularly seriously by its adherents, definitively states that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”
The Americans take their constitution very seriously.
As critics have noted, if the U.S. had a notwithstanding clause, much of the Civil Rights movement might never have happened. Southern states could have simply ignored desegregation rulings such as Brown v. Board of Education.
So the question is: Why did Canada make such a fuss about writing a constitution only to insert a measure allowing any Joe or Jane Premier to ignore it?
The answer, like most weird Canadian legal things, is compromise.
The government of Pierre Trudeau didn’t want to repatriate a constitution without broad provincial support, and the only way they could get Western Canada on board was by holding their nose and writing in the clause.
As one Liberal MP said later, the deal forever stained the document with “shenanigans” and “skulduggery.”
It was later literally stained by an ink-wielding protester.
At the time, skeptics were worried that an …read more