Combating Canada's Notwithstanding Clause

"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."

"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."

Provincial parliaments have increasingly used the notwithstanding clause to suspend constitutionally protected rights, often targeting minority communities such as transgender people and religious minorities. Section 33 permits federal or provincial legislatures to override fundamental freedoms in Section 2, legal rights in Sections 7–14, and equality rights in Section 15. Public disapproval was the traditional check on the clause, but governments now invoke it without serious backlash or political consequence. In 2025 Alberta used the clause for a law requiring parental consent for educators to use a child's preferred pronouns or teach on gender identity, sexual orientation, or human sexuality. The federal constitutional power of disallowance remains a legal tool that could be employed to counter provincial uses of the notwithstanding clause.

Read at Apaonline