Tom Axworthy expressed that the increasing use of the notwithstanding clause by provincial governments no longer surprises him. Axworthy, a former principal secretary to Prime Minister Pierre Trudeau, noted that the once-taboo clause has become more common in recent years, attributing this trend partly to the rise of populism.
Axworthy, currently serving as the public policy chair at Massey College, highlighted concerns from legal experts that the notwithstanding clause could potentially infringe on minority rights. However, some argue that the clause is a valid constitutional tool for elected leaders to assert their authority.
Law professor David Schneiderman from the University of Toronto concurred with Axworthy, linking the clause’s heightened use to populist sentiments and perceived threats to prevailing cultural values. Notably, Alberta Premier Danielle Smith recently invoked the notwithstanding clause for legislation concerning transgender individuals, following previous use of the clause in different contexts.
Ontario Premier Doug Ford also hinted at employing the notwithstanding clause for upcoming legislation. Section 33 of the Canadian Charter of Rights and Freedoms allows leaders to override judicial decisions on legislation that may conflict with specific Charter sections for a limited period.
Although the notwithstanding clause was initially sparingly used, its recent normalization has prompted debates on its appropriateness. Lydia Miljan, a political science professor at the University of Windsor, observed a shift in perceptions of the clause, with some premiers viewing it as a legitimate governance tool. However, the lack of significant political repercussions for invoking the clause has raised concerns about its unchecked application.
The study conducted by Geoffrey Sigalet and colleagues highlighted the clause’s evolution into a partisan tool amid conflicts between provincial and federal governments. While some support the clause’s use in certain contexts, critics caution against its potential to limit the rights of marginalized groups. The ongoing debate centers on the balance between legislative authority and judicial oversight in upholding Charter rights.
