What are Canada's NOTWITHSTANDING Clause Limitations?

Who gets the last word in Canada’s democracy: judges or elected lawmakers? 

Gavin Tighe and Stephen Thiele unpack the politics and law of the notwithstanding clause, tracing its 1982 origins as a grand bargain that paired constitutional rights with parliamentary supremacy and a five year sunset. 

Using Quebec’s secularism law as a live test case, they explain why some rights like voting cannot be overridden and how current fights over bike lanes and speed cameras pull courts into policy making. 

They debate proposed “guardrails” such as supermajority requirements, argue that any real limits would need a formal constitutional amendment, and warn that frequent use could normalize section 33 and water down the Charter. 

The result is a sharp, timely primer on how law, politics, and accountability collide when governments invoke the clause.

Listen For

1:20 Who gets the last word in Canada’s democracy, courts or parliament?

3:50 Why can’t the notwithstanding clause override voting rights under section 3?

6:01 Could bike lanes or speed camera rollbacks trigger Charter challenges on safety?

7:26 Why was section 33 created and how does the five year sunset tie to elections?

14:16 Should Canada add guardrails like a supermajority to use the notwithstanding clause?

Transcript

Gavin Tighe (00:00): 
 It's troubling to me because if the notwithstanding clause is there to enshrine the supremacy of parliament into the Canadian constitution, how can a court rule on that? Wouldn't it require a constitutional amendment? If the court can put conditions or restrictions on the use of the notwithstanding clause, then the court is supreme, not parliament. The notwithstanding clause should not be amended by a court. The whole point of it is that it's saying the court has no business or the court should not be supreme in respect of these particular sections of the charter. I mean, who gets the last word? Is it the court or parliament? Hello. Welcome to the next episode of Beneath the Law. Gavin Tighe here. Steven Thiele. How are you sir? 

Stephen Thiele (00:43): 
 I'm really good, Gavin. How are you doing? 

Gavin Tighe (00:45): 
 I am doing pretty good. I'm here just dog sitting while we record this. Actually, you can't dog sit your own dog. He is actually human sitting. 

Stephen Thiele (00:55): 
 Yes. 

Stephen Thiele (00:56): 
 He's taking care of you. 

Gavin Tighe (00:57): 
 Yeah, I'm taking care of my little dog while I'm here on my own. So if you hear a little barking, that's him looking for attention. 

Stephen Thiele (01:08): 
 That's good to hear. You're in a better place than I am. I am sitting in our offices in downtown Toronto, but notwithstanding that I'm still in a good mood. 

Gavin Tighe (01:18): 
 Notwithstanding, yes, notwithstanding has been a topic of late in a great number of cases and the discussion surrounding our famous notwithstanding clause in the Charter of Rights here in Canada in our constitution, which is to say that you have a constitution and a charter of rights except for if we don't. 

Stephen Thiele (01:44): 
 Well, and that was the key compromise in order to get our Canadian Charter of Rights and Freedoms. So very interesting political discussion as a case is headed to the Supreme Court of Canada on Quebec's secularism law, I guess is what is going to be argued and determined and whether there should be some guardrails put around the use of the notwithstanding clause. 

Gavin Tighe (02:15): 
 Yeah, so the secularism law, we call it that, is basically a pretty well known piece of legislation out of the province of Quebec, which frankly does have some pretty strange pieces of legislation, frankly, in terms of legislating what language people can put signs up on, for example, and this one was what people can wear to work if they work for the government. And what the legislation basically said was there will not be any religious identifying garments or symbols if you're working for the government, so hijabs or any other type of religious garment or wear was banned by the government. And of course that would provoke, in fact did provoke, a charter challenge as to whether or not that was a lawful statute. In fact, I think that one of the sections was struck down even though the notwithstanding clause was used because there was an argument under the right to vote section that if people in the legislature, for example, who were elected were wearing religious garments, the notwithstanding clause doesn't apply to the right to vote section of the charter. So that was in fact an infringement of the charter, and that portion of legislation was in fact struck down. 

Stephen Thiele (03:50): 
 Because section three is not a right that the government can actually take away. 

Gavin Tighe (03:55): 
 So there are certain super priority rights in the charter to which the notwithstanding clause does not apply and cannot apply. And that was one of them. So in the lower court in Quebec, that section was carved out in the sense that the people who were elected to the legislature were allowed to wear whatever they like. Correct. But people who work in the legislature were not. 

Stephen Thiele (04:20): 
 Well, that's going on, and I'm not even sure where their proposed legislation now sits. They actually want to ban all forms of prayer in public. So this is what is going on in Quebec. They certainly have a decent history of invoking the notwithstanding clause. 

Gavin Tighe (04:44): 
 Well, they have no compunction about that, invoked the notwithstanding clause, and have in fact, were the first to do it and have done it several times since. 

Stephen Thiele (04:52): 
 Which has shifted and which is why a lot of attention is now being paid to this case that's going to the Supreme Court of Canada. We've had Alberta use the notwithstanding clause, Saskatchewan, Ontario has used it, New Brunswick has used it, Yukon territories I think proposed it once as well. So we're beginning to see provincial governments threatening or warning that it will be used to protect their mandates really and their enacted legislation. We're seeing that. I'm not sure what's going to happen with the bike lanes in Toronto. We have the premier proposing to get rid of the speed cameras. We talked about that topic. And I can see a similar challenge being made to that legislation because rights to life, liberty and security of the person, if they're saying that speeding around school zones is causing injury or death, you can just see that being a charter challenge. 

Gavin Tighe (06:01): 
 Absolutely correct. I mean, the exact same argument that was successful at the trial level with regards to the bike lanes could certainly be mounted with respect to the speed cameras. If they can find experts, which I have no doubt they would find plenty of. 

Stephen Thiele (06:19): 
 There will be a lot of experts. 

Gavin Tighe (06:21): 
 You can find an expert. My own bias here is that I think you can find an expert to say anything if you pay enough. But in any event, they could find experts to say that speed cameras in fact reduce speeding, that speeding causes injury or harm. And therefore any law that was to take away speed cameras would affect the charter rights of any of the individuals, just like it affected the charter rights supposedly of the bike lane users who say that it endangered their life if the bike lanes were taken away. 

Stephen Thiele (06:52): 
 So we can see that happening, gazing into the crystal ball. There's a lot of saber rattling going on right now. Although this is a legal podcast, this certainly drifts into the political now in terms of what was the purpose of the notwithstanding clause to begin with. And we talked about that a little bit earlier in the podcast. That was the section that permitted the Charter of Rights and Freedoms to actually be born. 

Gavin Tighe (07:26): 
 Yeah, absolutely. So it comes down to the great compromise. I mean, Canada is not the United States. It's a very different type of democracy. The primacy of parliament has always been the notion of the Westminster system of government, which is the Canadian system. And in 1982, when the charter was finally brought into place when the constitution was repatriated as people would say, the compromise was that there was a group of people, a group of premiers including the premier of Alberta, I think the premier of the day at the time was spearheading that, who said there is no way that we are ceding the right of parliament or the government of parliament or the electorate who gets to elect people to go to the legislature. We're not handing that power over to the judiciary as the final arbiter as to whether the law passed by parliament is valid or not. So there has to be a release valve in terms of some of these things so that we can pass the law even if a judge were to say it offends the charter, and that we have the right to do so notwithstanding that it offends the charter. And so that's where the notwithstanding clause was born. I mean, the compromise on it is if a legislature uses the notwithstanding clause, they've got to bring that legislation back before parliament and renew it, so to speak, five years later. 

Stephen Thiele (08:57): 
 Why that matters. 

Gavin Tighe (08:58): 
 Right. Why it matters is because of course we have elections every four years. So in other words, if a government wants to use the notwithstanding clause, and I think in fairness, if a government invokes the notwithstanding clause, they kind of admit that the law breaches the charter. Otherwise, why would you invoke the notwithstanding clause? If you thought the law complied with the charter, you wouldn't do so. You're certainly hedging your bets that a judge might find it to be non compliant. So you've certainly identified that there's a risk that it's not compliant, but you've got to go back to the electorate. You've got to go back to the voters and get reelected again, or the successor government has got to go back to the voters and it becomes a political issue. So ultimately, the notwithstanding clause gives supremacy to parliament. Parliament does get to pass laws regardless of the charter, but parliament has to go back to the electorate and get that use of the notwithstanding clause endorsed by the electorate in an election cycle and bring it back on again. 

Stephen Thiele (10:04): 
 And the politics of this is to me very interesting, being a former student of political science and spending a lot of hours looking at Canadian politics in particular and being in university just getting into university at the time that the charter was passed. So the compromise is very interesting. And in terms of the sunset clause being there, the five year clause basically limiting the elected lawmaker because they do have to go back to the electorate, and then just the language of the clause being as open as it is to allow the government to invoke the notwithstanding clause. They don't have to identify what provision in an enactment their declaration applies to, it's blanket, and they don't have to identify which right they're taking away per se. So to me, when I look at that, the argument that they can only use it in an emergency is really taking away the compromise. And the other argument that we're seeing now is that regardless of the notwithstanding clause being used, the court should still have an ability to determine whether the legislation infringes against the charter. And we saw that ruling in the Saskatchewan Court of Appeal decision in the UR Pride case recently. And I sit here in Ontario, and the question that it puts in my mind is if the notwithstanding clause is used, isn't the judgment of the court moot? And why are we wasting judicial resources arguing about that? 

Gavin Tighe (12:11): 
 Yeah, it is moot. I mean, I suppose that the court is saying yes, it does infringe the charter and it's a bit of an academic exercise in making that ruling. 

Stephen Thiele (12:23): 
 But it's an expensive academic exercise. 

Gavin Tighe (12:25): 
 Extraordinarily expensive academic exercise. But I suppose that there's a political element to that too, because the use of the notwithstanding clause, as I said, is kind of meaningless unless the legislation offends the charter. So the converse is important as well. I think that for the purposes of the sunset clause and the obligation of the government to bring that back on again after the next election or making it an election issue, would it not be important as an election issue that the court has found that this legislation offends the Charter of Rights and Freedoms and this government passed it anyway. I mean, that would be something that the electorate could say yes, that's fine, or no, I don't like that. 

Stephen Thiele (13:09): 
 Well, it would certainly support the arguments of the opposition, but I guess the question then becomes, should an unelected judge be making that determination too? Are they being drawn or sucked into the politics of it when maybe they shouldn't be? 

Gavin Tighe (13:32): 
 Absolutely. But the notwithstanding clause in the constitution is, in my view, inherently political. And it was meant to be political. I mean, you can't sit there and advocate for the supremacy of parliament and then say that the law can't be political. You've just said that it is inherently political. If parliament is supreme, then the law is all about politics because parliament is elected. I think the intersection of law and politics with respect to the charter is never more patently obvious than in the notwithstanding clause. It is a political section. 

Stephen Thiele (14:16): 
 One hundred percent political. Do you have a personal view in terms of whether there should be guardrails placed around it? There is actually a private senator's bill before the federal parliament basically saying that two thirds of the House of Commons would need to vote in favor of the notwithstanding clause and that it has to be two thirds of members from two parties before the notwithstanding clause is used. Is that appropriate? 

Gavin Tighe (14:54): 
 Look, the notwithstanding clause is in the constitution because it needed to be, to get a constitutional amendment which required buy in by all the premiers. So if the point is this, if you could write the constitution by simply a super majority legislation in the federal parliament, we wouldn't have needed a notwithstanding clause because you wouldn't need an agreement. So if you're going to amend the notwithstanding clause and put in what they call guardrails on it, if you're going to change it, you have to change it just like you'd amend the constitution in any other way through a constitutional amendment. That means you'd have to get buy in from all the provinces just like they did in 1982 to add these words to the section. So I don't think some super majority of parliaments in the federal government can amend the constitution like that. That's not the way. If it were that easy, we wouldn't be having this conversation. 

Stephen Thiele (15:51): 
 I agree with that totally too. I just don't know at the end of the day where this all goes. I guess we're seeing the use of the notwithstanding clause more and more. 

Gavin Tighe (16:04): 
 Well, that's the key. Remember, it is inherently political, and those who were in favor of inalienable rights enshrined to be determined by the judiciary, not the supremacy of parliament similar to the US model. That to me was kind of like a third rail so to speak. No one will ever touch it because they did not want to go back to the electorate on the charter. 

Stephen Thiele (16:32): 
 There was a fear in using it. 

Gavin Tighe (16:34): 
 But that's going to be lost if there are a series of politically popular legislative choices that the government then uses the notwithstanding clause to override what is viewed as an activist judiciary seeking to govern from the bench in matters of public policy. So the bike lane case to me is a classic example of that. I think that there is a fair number of voters who don't like the bike lanes and the fact that the government was getting rid of them and are probably going to be pretty annoyed that their elected representatives are being overruled by an unelected judge. So that makes the use of the notwithstanding clause in that context, to my mind, politically palatable. And if you can get a number of those cases going forward, the third rail element of the notwithstanding clause is going to go away. People are going to get used to the fact that the notwithstanding clause is used, and it's not going to have the stigma that I think the framers and those who entered into it thought it would. 

Stephen Thiele (17:48): 
 Well, the bike lane case has a great distinction from the secularism law in Quebec or even their proposed law to ban prayer in public. Because to me, the bike lane case is really about money. They're spending millions of taxpayers' dollars on all these bike lanes throughout Toronto, and it's becoming a burden on the taxpayer. And as you say, a majority of people drive cars and it's really impacting car drivers. So an elected provincial government is making a policy choice, but now the charter is getting in the way and basically causing governments to continue to spend money. 

Gavin Tighe (18:41): 
 Yeah, I think that's the point. If there is, for example, a special interest group that may or may not take a position on something that is popular with the electorate and the special interest group gets their way, uses the charter in a way to have public policy move in the direction they want, even though the electorate doesn't want that, that is really what this notwithstanding clause was all about. That's when those advocating for the supremacy of parliament were saying, wait a minute, this is a democracy. Democracy is rule by the electorate. It's not rule by unelected judiciary and special interest groups who can put forward an argument that their particular rights are being offended by some particular piece of legislation. That was the argument back then. And these types of cases, I think, help that argument. They make that palatable to the electorate. They are going to take away the stigma of the use of the notwithstanding clause and make it easier to use the notwithstanding clause almost regularly, if I can say that. And what does that mean for the rest, what does that mean for the charter? It becomes a glorified bill of rights as far as I'm concerned. 

Stephen Thiele (19:59): 
 You just took the words right out of my head there, Gavin, and I'm glad that you and I are on the same page on that. And then that's an erosion of the rights. 

Gavin Tighe (20:12): 
 Yeah, I mean, if the whole thing was that if the judiciary and those special interest groups are huge supporters of charter rights, then they should want the charter to not get watered down through what will become, I think, a regular use of the notwithstanding clause, and therefore it's not a charter at all. 

Stephen Thiele (20:35): 
 It will be interesting to see what the Supreme Court of Canada judges say at the end of the day, but in my view, the language is pretty clear that the lawmakers have the ability to do whatever they want with respect to taking away those rights. The current political debate with respect to this is pitting the federal justice minister against the provincial premiers. Honestly, I don't understand where the justice minister is coming from. He seems to be passing the buck onto the court, but I think the issue is much deeper than that. 

Gavin Tighe (21:16): 
 I think this was raised in their factum for the first time in terms of asking for some guidance on this from the court. But really it's troubling to me because if the notwithstanding clause is there to enshrine the supremacy of parliament into the Canadian constitution, how can a court rule on that? Wouldn't a legislature or the various legislatures be required to act? Wouldn't it require a constitutional amendment? If the court can put conditions or restrictions on the use of the notwithstanding clause, then the court is supreme, not parliament. The notwithstanding clause to my mind should not be amended by a court. The whole point of it is that it's saying the court has no business, or the court should not be supreme in respect of these particular sections of the charter. I mean, who gets the last word? Is it the court or parliament? 

Stephen Thiele (22:11): 
 I don't know. Isn't the rule of law supreme? So if the judges are determining what the law is, then what happens? At that point, in my view, you're creating a constitutional crisis because that doesn't seem to have been the intent of the premiers at the time that they agreed to this contract. 

Gavin Tighe (22:35): 
 The rule of law is supreme, sure, but who gets to make the law? That's the question. The question under the notwithstanding clause is ultimately that the laws are made by parliament. Parliaments are elected by the electorate. Laws are made by judges as judge made law all the time, but in terms of policy issues, issues of public policy and whatnot, generally speaking I think that in a democracy it's the elected officials who are the ones who are charged with making public policy decisions and enacting legislation that reflects it. 

Stephen Thiele (23:11): 
 And they always say that they are acting on behalf of the majority, although I guess no parliament is ever elected by a majority. But anyway. 

Gavin Tighe (23:19): 
 That's true. No parliament is ever elected by a majority, particularly in Canada where we've got a multi party system. And certainly in a municipal election, that was a correct discussion in the bike lane case about the municipality. In a municipality, the number of people who actually vote for the councilors is a very small minority. I don't know what the turnout in municipal elections is, but it's something around thirty percent of people vote. And of those thirty, even if it was a two horse race in terms of councilors, you're talking about less than fifteen percent of the people that voted for the individual councilor in a particular ward. 

Stephen Thiele (24:00): 
 That's pretty small. And all too frequently you see a dozen, if not more, people on the ballot, and some of the winners have basically twenty percent of the thirty percent. 

Gavin Tighe (24:13): 
 Exactly. But that's the system we have. It is the closest democracy that we have. We have a parliamentary system in Canada. That's how we elect our elected officials. And elected officials are charged with implementing legislation to reflect the public policy that the electorate wants. And if they don't, they won't get reelected. 

Stephen Thiele (24:37): 
 In my opinion, Gavin, that's for the opposition to raise. Oppositions are well funded. I'm not sure that the court should necessarily get involved in that, because as we see in Toronto and throughout Ontario, it's using judicial resources and time, and there are a lot of cases that are not being dealt with. We see that on the criminal side. We get charges thrown out of court because there's no judge to hear them within what is it now, eighteen months or two years that a case depends. 

Gavin Tighe (25:12): 
 Depends on the offense, but yes. 

Stephen Thiele (25:13): 
 So is it the right thing to be bringing all these constitutional challenges all the time, particularly with respect to legislation that contains the notwithstanding clause? 

Gavin Tighe (25:27): 
 The bike lane case involved a very well funded lobby that supported cycling and bike lanes, and they were very well organized and they mounted a very good case. I think that the Crown was frankly outlawed on that case, to be blunt. They were certainly out experted if you read the decision. 

Stephen Thiele (25:51): 
 We didn't act on that one. 

Gavin Tighe (25:52): 
 We did not. Not the Crown. The Crown had its own counsel on that one. But that's important because in a democracy people do not want to have public policy dictated by a minority special interest group that just happens to be able to mount a case better than the Crown might. Public policy is theoretically the domain of the political arena, the domain of elected officials. 

Stephen Thiele (26:23): 
 When special interest groups begin to frame public policy and are victorious before the courts, it's a bit of the tail wagging the dog. But our podcast is called something else. 

Gavin Tighe (26:38): 
 Our podcast is about if no one is above the law, then everyone is beneath it. Steven, thanks again. Great discussion, a lively discussion and a really impactful discussion. It will be interesting to see what the Supreme Court does, if anything, if they even deal with this when the decision comes out on the Quebec legislation. I'm looking forward to that, and I think we'll have a follow up episode at that time. Thanks to everyone for listening. We really appreciate it. Give us your comments and your ratings. We appreciate them so much. Any ideas for future episodes, we are interested to hear from you. And as we always say, if no one is above the law, everyone is beneath it.