The “Notwithstanding Clause,” the common name for section 33 of Canada’s Charter of Rights and Freedoms—the country’s constitutional bill of rights—authorizes time-bound legislation that violates the Charter. Recently, in Bill 28, the province of Ontario used the Notwithstanding Clause to override the Charter’s protection of the right to strike. The “draconian” legislation unilaterally imposed a contract on educational workers and threatened them with severe fines in the event of a strike. The workers walked off the job anyway. Then, three days later, the government repealed Bill 28 and returned to the bargaining table.
Is the Notwithstanding Clause a reasonable safeguard to avoid a dangerous concentration of power in an unelected judiciary? Or is it a free license for legislatures to trample on the rights of vulnerable groups? The recent battle over Bill 28 demonstrates that this latter concern—that the clause gives provincial legislatures too much power to strip away important constitutional rights—might be partially counterbalanced by three mechanisms: disapproval, disallowance, and disobedience. These checks rely on a public that believes in constitutional norms and is both willing and able to enforce them through collective action—conditions that cannot be taken for granted. But by finding a compromise between the fallibilities of majoritarian decisionmaking and unaccountable judiciaries, section 33 might guard us from the most dangerous excesses of each. Those concerned with questions of judicial reform in the United States would be wise to take notice.
In Ontario, 55,000 educational assistants, custodians, administrative staff, librarians, and other educational workers are represented by the Canadian Union of Public Employees (CUPE). After failing to reach a deal with the Ontario government, the workers announced their intention to strike. The province then quickly enacted Bill 28, which unilaterally imposed the government’s final bargaining offer and ordained fines of $4,000 per day on striking workers and $500,000 per day on CUPE.
A statute prohibiting strikes would normally be unconstitutional. In 2015, the Supreme Court of Canada determined that the freedom of association guaranteed by section 2 of the Charter protected the right to strike. However, the Notwithstanding Clause gives legislatures the power to “expressly declare” that legislation will “operate notwithstanding a provision included in section 2 or sections 7 to 15” of the Charter, for up to five years.
Notwithstanding Bill 28’s abrogation of their constitutional right, CUPE workers stood by their plans for a strike—not only in protest of the government’s bargaining position, but also of its dizzying use of the Notwithstanding Clause to contravene their constitutional rights. “We are on strike until this government recognizes,” said regional CUPE leader Laura Walton, “that you can put in all of the legislation in place, but you cannot control a worker movement that is so fed up with your overreach.”
As the workers withheld their labor, the province faced mounting pushback, culminating in calls for a general strike on November 6. The next day, the province offered to repeal Bill 28 and go back to bargaining. They then offered 15% in wage increases for the average worker over a four-year contract, as well as repayment of lost wages for the duration of the strike. Workers will be voting on the proposal through December 5.
A strong judiciary offers a “potentially valuable veto power over rights-threatening legislation” by political majorities. But strong judiciaries can also veto legislation designed to protect fundamental rights or advance equality. The U.S. Supreme Court provides a troubling illustration, as it has “undermined federal attempts to eliminate hierarchies of race, wealth, and status” and “directly contributed to the rise of Jim Crow.” This regressive tendency of the Court has led many to criticize its power, while others still hesitate to take away the Court’s “additional check on government action.”
The Notwithstanding Clause offers a possible alternative: a strong judiciary coupled with an additional check on its power. As Professor Kent Roach writes, this “dialogical” constitutional structure is based on “a theory that rejects the idea that either the judges or the legislators are infallible.” It allows legislatures to “double-check” the Supreme Court’s initial check on their power: if the public believes a judicial decision is “manifestly wrong,” the legislature can circumvent it, so long as it makes explicit that it is doing so. That might prevent a high court from going too far, as many believe the U.S. Supreme Court has, in interfering with the legislature’s ability to protect minority rights and advance social progress.
But what about the concern, as demonstrated by Bill 28, that the clause can also be wielded by legislatures, without exigent circumstances, to short-circuit constitutional protections afforded to vulnerable groups? That worry is real, but it should not be overstated. Without a Notwithstanding Clause, the judiciary really does have the last say on constitutional matters (absent a constitutional amendment). But the Notwithstanding Clause does not simply transfer that power to legislatures. Rather, the legislature’s “double check” on the Court is itself restrained by several “triple checks.”
First, disapproval: voters can reverse the legislature’s determination in subsequent elections, especially since Notwithstanding Clause legislation must sunset within five years. Second, disallowance: the Governor General, on advice of the federal cabinet, has the (admittedly rarely used) power to “disallow” provincial legislation, derived from sections 56 and 90 of the Constitutional Act, 1867. Third, disobedience: the power of the people to force the government to cave through collective action and disobedience of the rights-infringing law.
Bill 28 put the powers of disapproval and disobedience in the spotlight. “It would be much better,” Prime Minister Trudeau said, “if instead of the federal government having to weigh in and say, ‘You really shouldn’t do this, provincial governments,’ it should be Canadians saying, ‘Hold on a minute. You’re suspending my right to collective bargaining? You’re suspending fundamental rights and freedoms that are afforded to us in the Charter?’”
That’s exactly what happened. CUPE workers challenged the province’s use of the Notwithstanding Clause through collective action. What was originally a strike over wages and working conditions turned into political resistance. And most Ontarians sided with the workers.
In fact, Ontario’s use of the Clause was so incendiary that the otherwise splintered Canadian labor movement came together to oppose it. One union, Unifor, left the Canadian Labour Congress (CLC) in 2018 and has been criticized for raiding other unions for their members. But in the thick of the strike, Unifor pledged that it would donate $100,000 to CUPE—a CLC-member union—if Ontario fined its members for striking. The BC Teachers’ Federation pledged $1 million. 8,000 educational workers under a different union walked off the job in solidarity with CUPE. A general strike was quickly becoming a real possibility. And that’s when the government gave in. As one labor official put it: “We have a responsibility to hold government accountable, and that’s what we did.”
The collective disobedience of Bill 28 demonstrates the merits of the Notwithstanding Clause for one simple reason: A judiciary, acting in its proper role, cannot change its opinion because workers across the country threatened a general strike. But a legislature can.
Nonetheless, most people whose rights are imperiled cannot so readily inflict economic and political costs on their government. This is especially true for groups most vulnerable to retaliation for their disobedience, like asylum seekers or people with criminal records—the same groups that a countermajoritarian judiciary is most needed to protect. And where prejudice motivates animus towards a politically unpopular group, majorities may celebrate their legislature’s constitutional defiance, rather than rebuke it.
Indeed, in 2019, Quebec used the Notwithstanding Clause to transgress the rights of religious minorities, especially Muslim women, when it banned public employees from wearing religious garments. Unlike in Ontario, the backlash was insufficient to result in repeal of the legislation. Instead, in the 2022 Quebec election, the party responsible for the ban was re-elected with even more legislative seats.
For the Notwithstanding Clause to effectively perform its dialogical function, the public must have deep-seated respect for constitutional norms, as well as the willingness and ability to enforce those norms through political protest. As the Quebec experience shows, neither of these things can be guaranteed. But neither can we guarantee that judges will make the right decisions on the biggest issues of the day.
In short, a Notwithstanding Clause, coupled with an otherwise strong judiciary, might be the least dangerous system: maximally protecting against both an unrestrained legislature and an unrestrained Supreme Court. But unless we dearly protect the rights of vulnerable groups to engage in collective action and participate in the political process as equals, even the least dangerous system will remain unacceptable.