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Democracy Notwithstanding: Canada’s History of the Notwithstanding Clause and its Role in Human Rights

by Emma Celeste Thornley

Free Justice Statue photo and picture
Courtesy of William Cho via Pixabay

The Canadian Charter of Rights and Freedoms enshrines a number of individual rights considered to be essential to the preservation of human rights. Among these are freedom of religion, expression, and association; the right to life, liberty and security of the person; and freedom from unreasonable search, seizure and arbitrary detention. It is a common assumption that these rights and freedoms are absolutely inalienable and immutable. That assumption is wrong.

The notwithstanding clause, otherwise known as Section 33, was introduced to the Canadian Charter by Pierre Trudeau’s office; it was a concession to satisfy concerns that the Charter of Rights, as Trudeau’s office had initially drafted it, was “too powerful” (Zimonjic, 2022). The language of Section 33 holds that parliament, or the legislature of any given province, could temporarily disregard a provision of the Charter outlined in sections 2, or 7-15 (Government of Canada, 2022). There are, of course, limitations; any declaration made via the notwithstanding clause shall cease to be of effect five years after its implementation, though it can be renewed at the end of that 5-year term. At the time of the Charter’s drafting, Section 33 was intended as an escape-hatch (Zimonjic, 2022), evocative of the American “state’s-rights” model. The general understanding was that the notwithstanding clause ought to be a last resort, utilized only in the most unusual of circumstances. By its definition, the notwithstanding clause had the power to disrupt the execution of a number of fundamental Charter principles.

While this power may seem overwhelming on its face, the ability to disregard or supersede an established Charter right is not an unprecedented one. There is a process, called the Oakes Test, by which laws that limit a Charter right can be evaluated as justifiable or an overreach of power. It is a litigious procedure, arising from the Supreme Court of Canada’s ruling in R v Oakes.

This 1986 case saw the accused, Oakes, charged with possession for the purposes of trafficking after police caught Oakes with hashish oil and cash on his person. Oakes held that the drugs were his own and that he had no intent of selling them; yet, at the time, Section 8 of the Narcotics Control Act, under which he had been charged, held that anyone found with illegal drugs on them was presumed guilty of trafficking. This established a “reverse onus” in Oakes’ criminal trial. Rather than the burden being upon the state to prove his guilt beyond a reasonable doubt, Oakes had to prove his innocence (Centre for Constitutional Studies, 2019). Oakes and his lawyers challenged the constitutionality of this onus, claiming it violated his Section 11(d) Charter Right to the presumption of innocence until proven guilty. The Supreme Court agreed this right had been violated. The ultimate question, however, was whether the violation of this right was justifiable under Section 1 of the Charter: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The SCC ultimately ruled that to determine if a law’s imposition on an established Charter right was justifiable, the imposition had to pass a series of tests: first, that the law under review has a goal which is both “pressing and substantial”. Second, that the law limits the right in question only in such a way as is rationally connected to the law’s purpose. Third, the law must minimally impair the right. Fourth, the imposition upon the right is proportional to the effect of the law (Centre for Constitutional Studies, 2019). The Oakes Test is consequentially an effective, consistent measure by which to test whether a law has justifiably infringed upon a Charter right.

The notwithstanding clause’s metric of measurement is nowhere near as comprehensive nor consistent. It is typically invoked when there is a controversial court ruling (McKenzie-Sutter, 2022) and it can, in theory, provide a sanctified avenue by which provincial governments can override federal authority should a federal government overstep their jurisdictional reach (Callaghan, 2021). Supporters of the notwithstanding clause have opined that “It’s entirely possible that a judicial body will make a judgment on rights that many find abhorrent. Under a system where they wield ultimate authority over the matter, there is little recourse to challenge that judgment. The recent decision by the United States Supreme Court to overturn Roe v. Wade is a stark example of this reality” (Callaghan 2021). While the notwithstanding clause is undoubtably conceptually admirable, its application has been controversial and, at times, in contradiction of Canadian citizens’ rights. Section 33 has been invoked some 26 times since its implementation. The majority of those invocations were tabled by Quebec. Most make it past initial invocation and into enactment. Some instances of particularly controversial uses of the notwithstanding clause in recent memory are Alberta’s 2000 case, Quebec’s 2019 case, and Ontario’s 2018, 2021 and 2022 cases.

In the first instance, Alberta invoked the notwithstanding clause in response to the federal government’s passing of Bill C-23 (CBC, 2012). Bill C-23 guaranteed same-sex couples the same benefits as heterosexual couples after a year of cohabitation. Alberta responded by passing Bill 202, which threatened to invoke the notwithstanding clause should Canada ever redefine marriage to anything other than a man and woman (CBC, 2012). The misuse of the notwithstanding clause is self-evident; the Supreme Court of Canada agreed, declaring Bill 202 and its threatened use of the notwithstanding clause ultra vires, or beyond legal authority, as of 2004 (S.C.R. 698, 2004).

In 2019, Quebec introduced the controversial Act Respecting the Laicity of the State, otherwise known as Bill 21. You may recall the furor that arose in the media after Quebec declared their intention to invoke the notwithstanding clause to support this act, which prohibited civil service employees and public teachers from wearing religious symbols, like kippahs, crosses and hijabs while working (Souissi, 2021). Quebec was successful in implementing the notwithstanding clause. Given the notwithstanding clause’s mandatory five year renewal, it may be overturned in the future; it will, regardlessly, impact the religious liberties of Quebec citizens in the meanwhile.

Ontario’s history with the notwithstanding clause is recent, and resultantly unique. In the province’s history, the notwithstanding clause has been utilized three times. First, in 2018, when the Ontario provincial government utilized Section 33 to reduce the number of wards in Toronto from 47 to 25. This reduction occurred alongside a municipal election, raising concerns that the Ford administration was severely infringing upon the democratic rights of voters (Ahmed, 2022). The second invocation occurred in 2021, when the Ford administration passed the Protecting Elections and Defending Democracy Act. In sum, the act prohibited third-party election advertising and advocacy during the election period, such as labour unions. The legislation was found to override the Charter, and was consequently struck down by Ontario Courts (Kelly, 2022). In response, Ford’s administration overrode the Court using the notwithstanding clause. More recently, Ford’s administration tabled the Keeping Students in Class Act, which utilized the notwithstanding clause to mandate striking teachers back to work. It was lambasted as an “unprecedented attack on workers’ rights” (Koskie Minsky LLP, 2022), and consequently revoked and deemed “never in force” (Legislative Assembly of Ontario, 2022).

In sum, the Charter of Rights and Freedoms is not the inflexible pillar it is sometimes perceived to be. In some instances, its “bending” is to the benefit of the citizenry. Section 33 could permit provincial governments to reject federal overreach, an insulation against oversteps by any prime minister’s administration. Yet like so many things, the notwithstanding clause can be invoked in ways that hinder, rather than uphold, basic rights. The “legalese” used to describe related governmental acts and resultant action can alienate most of us from the realities of what is being passed as law. That alienation may prevent us from realizing how, and when, Charter Rights and Freedoms are eroded without reasonable cause.

There is no question that we are privileged to live in a country like Canada. It is imperfect, and has a longstanding history of colonial violence, but it also has an established constitutional rights framework by which to challenge our own persisting human rights issues. Other nation-states do not necessarily have the same constitutional protections. Given our comparative privilege, it can be easy to forget that human rights are hard-won and, in some instances, easily lost. It is our civic duty to vigilantly monitor the ways in which our rights and freedoms as Canadians are in flux, to prevent government overreach at all levels. If the history of the notwithstanding clause can offer us any insights, it is that human rights are a constant practice, and not a milestone of democracy. We must constantly be mindful of how our rights adjust and flux, decade to decade, administration to administration.

Work Cited

Ahmed, H. (2022, August 8) Toronto v Ontario: Municipal Elections, Freedom of Expression, and Provincial Authority. Centre for Constitutional Studies. https://www.constitutionalstudies.ca/2022/08/toronto-v-ontario-municipal-elections-freedom-of-expression-and-provincialauthority/

Callaghan, G. (2022, July 6) In defence of the notwithstanding clause: Why Canada should hold onto it. The Conversation. https://theconversation.com/in-defence-of-the-notwithstandingclause-why-canada-should-hold-onto-it-186375

CBC (2012, January 12) TIMELINE: Same-sex rights in Canada. https://www.cbc.ca/news/canada/timeline-same-sex-rights-in-canada-1.1147516

Kelly, Y. (2022, March 21) Ontario’s Bill 307 does more to restrict democracy than protect it. York Region News. https://www.yorkregion.com/opinion-story/10591141-ontario-s-bill-307-does-more-to-restrict-democracy-than-protect-it/

Koskie Minksky LLP (2022) The Keeping Students in Class Act. https://www.lexology.com/library/detail.aspx?g=e7137110-7583-4533-9f18-468074bd55c1

Legislative Assembly of Ontario (2022) Bill 35, Keeping Students in Class Repeal Act, 2022. https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-35

McKenzie-Sutter, H. (2022, Oct 31) What is the notwithstanding clause? An explainer on the rarely used provision. CTV News. https://toronto.ctvnews.ca/what-is-the-notwithstandingclause-an-explainer-on-the-rarely-used-provision-1.613270

Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79. https://scccsc.lexum.com/scc-csc/scc-csc/en/item/2196/index.do

Souissi, T. (2021, December 17) Bill 21 (An Act Respecting the Laicity of the State) The
Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/bill-21

Theory in Action

By: Serina Woo

There shall be no justification for what the government of Zimbabwe has done to its citizens. Led by republican President Emmerson Mnangagwa, the government has once again failed the people of Zimbabwe. In Mnangagwa’s election speech in 2017, he promised to improve the quality of the government and reach across political ethnic and racial lines to strengthen Zimbabwe’s democracy (Zimbabwe: An Opportunity for Reform?). Filled with hope, Zimbabweans anticipated a political evolution. Yet, after Zimbabwe’s military brought an end to 37 years of rule by former president Robert Mugabe’s authoritarian regime, it’s continual presence as a key political player complicated Mnangagwa’s task of reinstituting effective governance (Zimbabwe’s “Military-assisted Transition” and Prospects for Recovery). On August 7, 2020, Zimbabwean police transferred prominent journalist, Hopewell Chin’ono, and opposition leader, Jacob Ngarivhume, to the infamous Chikurubi Maximum Security Prison (Chigumadzi, 1). Both were arrested and accused of inciting police violence, while in reality, the government played a prominent role in unreasonably enforcing violence amongst the protesters (Chigumadzi, 1). The treatment they received was terrible, being put in leg iron casts, and denied of bail, private visits with lawyers and family, food and adequate covid-19 precautions (Chigumadzi, 1). However, this is only one of the many issues that encapsulate the political persecution and public repression of Zimbabwe’s military state, marking the beginning of social unrest among Zimbabweans. In response to the thousands of protesters who marched on the streets, the government ordered a vicious attack – deploying soldiers as well as police force (Piguo, 1). To say the least, groups of protestors have also engaged in intimidation, vandalism, and looting. Though some of it was undeniably orchestrated, most appeared to be spontaneous (Chigumadzi, 1). By referencing the political ideology of the philosopher and economist, John Stuart Mill, it justifies the protests and serves as a framework for the defective government’s reconstruction. On the contrary, philosopher Edmond Burke’s political ideology fails to draw on the issue at hand, undermining the significance of innovation within a political context and favouring President Mnangagwa’s absurd policies and decisions.

John Stuart Mill was a liberal during the nineteenth-century, and in the modernized society, his ideology and written work continue to resonate with politicians. He is often brought up during discussions of social justice and income inequality, and his theories criticized privilege, oppression, and injustice. Mill’s theory of three liberties: the absolute freedom of opinion of sentiment, liberty to pursue one’s own tastes and pursuits, and liberty of combination among individuals, justify the protester’s motives of protesting. In his first liberty, he understood that silencing the expression of an opinion as peculiarly evil, “robbing the human race.” His theory supports the protesters’ purpose for attacking the government’s decision to subjugate opposing voices through violence. Further, this theory also validates the protesters’ resentment towards the government’s resolution to block internet services, suspending the flow of information and bringing about the prevalent confusion (Piguo, 3). Hence, giving the protesters justified reasons to protest for their concerns about the absence of freedom. Nonetheless, in Mill’s second liberty, he truly believed in “the liberty to pursue one’s own taste and pursuits,” where people should be allowed to live their lives exactly how they see fit, as long as this does not harm others in their society. Though modern-day politicians might refute Mill’s theory for it offers society a disproportionate amount of independence and freedom, but his individualistic values support the citizens’ protests for their futuristic expectations. However, only if we exclude the casualties from the physical encounters between the police force and protesters that created disunity within Zimbabwe. Mill’s liberal individualistic conception is also seen in his third liberty which underlines an individual’s freedom of choice to form groups of human rights activists, as long as this does not harm others in their society. If individuals of Zimbabwe wish to form an opposing stance to the government in the hope of advocating the respect for fundamental human rights, they should be entitled to do so. These ideas from Mill’s political philosophy strengthen the motives of protest and directly contradict Zimbabwe’s traditionalism, and unless convictions turn against this mindset, the demand for continuing traditions will only increase.

In addition, Mill valued individualism, his theory could be used to remodel and embellish the dictatorial government as a whole. Mill’s Harm Principle embodies the notion that “the sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” This could prompt the government to limit its unreasonable use of assault towards opposing groups and politicians as it is unreasonable to exercise power over protesters, except a minority of protesters who participated in lootings. Though the government’s order of violence on its citizens could be appropriated as an act of “self-protection” for state owned properties and police officers, it is evident that the government has a distorted idea of restricting opposing voices to retain its power. Accordingly, the government should reevaluate its attitude towards individual rights and achieving social utility based on Mill’s values, striking a balance between individual autonomy and government interference to limit freedoms in the interest of preventing harm to others. Individual protesters should have the freedom to defend their rights subsequent to the unlawful arrests and restraint of freedom made by the police and military, rejecting the government’s long term abuse of power. In order to achieve a balance, the government should cease its human rights violations, such as the invasion of privacy, obstruction of movement and limitation of access to information by peacefully reaching a consensus with the protesters and acknowledging their stance. Effectively, the government should utilize Mill’s Harm Principle to amend its structure, and manage opposing groups democratically.

On the other end of the political spectrum, the philosophy of Edmond Burke, the founder of conservatism would support the Zimbabwean government in defending contemporary arrangements against both idealistic desires and innovative schemes of reform though it is shown to be over-optimistic and out of date. Given that Burke’s ideology outlines the tradition and custom of the social contract, he does not consider innovative reforms suggested by citizens as necessary to the success of a country. He regards innovation as the result of a selfish temper and confined views, reinforcing the government’s desire to deny democratic changes from an authoritarian state. This theory also highlights the characteristics of conservatism seen in our contemporary society. Along with the rejection of innovation shown by the Zimbabwean government, Burke’s theory rejects the idea of changes in the government because he believed, “the entire progression of the commonwealth would be demolished.” Despite that, the government of Zimbabwe failed to take into account that the dismissal of these proposed changes violates democratic principles in our modern society, which are different from Burke’s conservative theory. The government’s disbelief in new changes to prevent the loss of power, similar to Burke’s theory, led to Zimbabwe’s failure in achieving democracy. Burke implied that the present generation does not have the right to ask for a change in politics because it would risk the country becoming a disaster: “It [is not] among [this generation’s] rights to cut off the entail or commit waste on the inheritance by destroying at their pleasure the whole original fabric of their society, hazarding to leave to those who came after them a ruin instead of a habitation.” This further empowers the Zimbabwean government in casually making decisions to benefit itself, and continues to justify public repression and freedom violations. Despite he urged people to understand the significance in teaching these successors as little to respect their contrivances as they had themselves respected the institutions of their forefathers, the consequences of his conservative thinking contradicts his belief.

Contrary to Mill’s theories, Burke’s perception of a government body implies the idea that citizens cannot depose an oppressive government due to the risk of a disaster. Despite that, the Zimbabwean government’s introduction of fiscal and economic reforms led to the hyperinflation of goods and services (Piguo, 10). As well, the values of ordinary citizens’ income and savings have been cut by more than half, further impoverishing an already struggling population (Piguo, 10). This counters Burke’s theory, indicating that an oppressive government is the cause of disaster, not the opposing opinions of citizens. Further, Burke believed that social achievements should be built up over time and suggested governments to find a compromise between what everyone wants and what’s beneficial to society from a historic point of view. However, as society develops, fixating on historic views in modern-day democracy brings on contradiction. After the ousting of Zimbabwe’s former authoritarian government, it marked a change, defying historical political values, and submitting to presentist democratic values. Yet the government’s response to violence towards the protests shows the embedded military influence in decision making, reflecting the fear of losing power. Similar to the government’s worries, Burke believes a change in government operation might trigger the fall of a government. He believed that the experience and obstacles a government had endured in its past should be recognized and preserved, hence rejecting the disposition of a government. Further, there was not an adequate structure that he approved of to act as a guide for changes during his time. Lastly, he viewed the state of government as a living organism, underlining the complexity of a society. Therefore, no one should be able to redirect the power as it might lead to a disaster. Although he recognized that a change in the law is necessary, he thought reforms should be made from a historical perspective. However, this would lower the efficiency of his reform in the ever changing society. Similar to the situation of Zimbabwe, laws aren’t likely to change as it is proven over time that the current system gives the government power over the citizens. Hence, it is seen in both Burke’s theory and the Zimbabwean government’s actions that they both value having power more than beneficial and efficient changes to the community.

Zimbabwe is in desperate need of reform if the government’s aim is to maintain stability and transition into a democratic country. John Stuart Mill’s liberal theories embody both sociality and freedom, guaranteeing freedom to individuals from different ideological groups. His theories underline Zimbabweans’ right to fulfill their interests through the uninterrupted expression of opinions. Supporting Zimbabweans’ humanitarian concerns and holding the faulty government accountable, the Zimbabwean government should take into account Mill’s theories and carry out changes to become a democratic state. On the contrary, Burke’s theories challenge the effectiveness of innovation based upon his old-fashioned thinking and support the Zimbabwean government to a certain extent where both Burke and the government value power over change. His theories are relatively controversial considering many aspects support the authoritarian government’s decisions. Critics believe that the Zimbabwean government is likely to be able to “put a lid” on the unrest and take activists off the streets, emphasizing the need for a reform of the government (Piguo, 22). As time goes by, though both philosopher’s ideologies were beneficial to future generations, being part of the foundation of the establishment of parties and the role of the member of Parliament, we should not be restricted by the views of historical philosophers as their ideas might not be up to date. Politicians should incorporate citizen’s current needs and desires, taking into consideration its effects on the future while making political decisions to form a harmonious society. 

Works Cited

JS Mill, On Liberty, 1859.

Mutsaka | AP, Farai. “Scores of Zimbabwe Protesters Arrested, Military in Streets.” Washington

Post, WP Company, 31 July 2020, www.washingtonpost.com/world/africa/empty-streets-in-zimbabwe-as-security-forces-thwart-protest/2020/07/31/cda13416-d309-11ea-826b-cc394d824e35_story.html.

“Opinion | In Zimbabwe, Two Political Prisoners Are a Symbol of a Repressive State.” Chigumadzi, Panashe. 

The Washington Post, WP Company, 17 Aug. 2020, www.washingtonpost.com/opinions/2020/08/18/zimbabwe-two-political-prisoners-are-symbol-repressive-state/.

Piguo, Piers. “Revolt and Repression in Zimbabwe.” Crisis Group, 31 Jan. 2019,


“Zimbabwe’s ‘Military-Assisted Transition’ and Prospects for Recovery.” Crisis Group, 20 Dec. 2017,


Looking Back on 2018: Women in Power

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