Clause for Concern: Canada's Notwithstanding Clause, Explained.

Imagine you're buying a smoke detector. You want it to keep your family safe, but this one has a giant red button on it that says "ignore fire," and anyone in the house can hit it whenever they feel like it. What's the point of having one at all? Welcome to Canada's notwithstanding clause, the constitutional equivalent of installing a seatbelt then clipping it behind your back so it doesn't mess up the fit. You may have heard about it recently because the Conservative leader Pierre Poilievre, who wants to be the next prime minister, said that he will invoke it if elected. No prime minister has ever used it before, by the way. But let's back up. The clause, which is actually called Section 33, lets governments, provincial or federal, override fundamental rights. Now, not all rights. It can't override the right to vote or, um, Indigenous treaties, for instance. But it can press pause on some of the big ones: freedom of expression, freedom of religion, freedom of assembly, equality rights. Normally, if a court rules that a law violates one of those rights, the law is struck down. But if this notwithstanding clause escape hatch is invoked, it's like the court ruling never existed. And contrary to what a lot of people think, this isn't a technical loophole that's being exploited. It was baked into the Charter from day one. Back in 1981, the Prime Minister was Justin Trudeau's father, Pierre Trudeau. He wanted a Charter that entrenched rights on paper, but the provinces weren't all sold. It was all because of judges. You see, in Canada, judges are not elected. They're appointed by a committee of people made up from the judiciary, law enforcement, some representatives of the general public. This means that judges rule by what's fair, not by what's popular. The provinces didn't like the fact that unelected judges could overturn laws passed by elected governments, so they pushed for an override button, something to keep the final word in political hands, not judicial ones. That fight nearly blew up the whole constitutional deal, so a compromise was proposed. Canada would get its Charter, but also some wording that lets governments push back, at least temporarily. Trudeau hated it, but he knew that the Charter wouldn't pass without it, so the federal government agreed, but with one condition: Any use of the clause to override people's rights expires after 5 years unless they are explicitly renewed. Well, before the ink was even dry on the Charter, Quebec invoked the clause. Like, right away. Mostly as a fuck you to Trudeau, since the province hadn't agreed to the new Constitution. It was performative for the most part. The province didn't end up renewing it when it expired, but for decades This clause was viewed as a last resort, something government should avoid unless absolutely necessary, unless a legitimate emergency was happening and there was literally no other choice. Lately, that's changed. In recent years, we've seen it invoked more often and more aggressively. Saskatchewan used it to uphold back-to-work legislation when courts said it violated people's right to freedom of association. Quebec used it to ban public servants from wearing religious symbols like a turban or a Muslim headscarf. Ontario used it to keep education workers from striking, then chickened out after public outrage melted their phone lines. And Saskatchewan used it just 2 years ago to prevent schools from recognizing students' chosen pronouns. Each time, the government avoided a legal fight by invoking the clause and short-circuiting the courts. One government that's never used it so far is the one that created it: the federal government. There's been an unspoken convention that Parliament should set a bar higher. Which brings us back to Conservative leader Pierre Poilievre. In 2022, the Supreme Court of Canada ruled that imposing consecutive life sentences on someone violates their Charter rights. Poilievre says if he's elected, he'll use the notwithstanding clause to bypass those rights and do it anyway. In his speeches, he says murderers are being let out on the street in droves after serving the minimum term of their sentence. It's not factually true. There is still a strong parole system out there, which he never talks about. The worst of the worst never really see the light of day. It also might be helpful to compare the notwithstanding clause to another legislative escape hatch: Canada's Emergencies Act. That law gives the government the ability to regulate travel and take property away and some other things, but it doesn't suspend Charter rights. It requires a legitimate emergency. It only lasts for 30 days for most cases, and after it's invoked, a whole series of accountability processes reviews it all. It's been used once, 3 years ago during the convoy protests. One of the loudest voices against its use: The Prime Minister has created a new emergency. Conservative leader Pierre Poilievre, who complained that the government used it to— wait for it— suspend Charter rights. Now to him, the Emergencies Act, with its layers of oversight and an expiration date shorter than a TikTok trend, that's tyranny. But the notwithstanding clause, which lets you override constitutionally protected rights and freedoms for 5 years with no review, that's leadership? Look, whichever way you think, whichever political side of the spectrum you're on, this whole clause to me has always seemed a little, I don't know, un-Canadian. A tool that erases the very purpose of the Charter of Rights, which it can be overridden so easily without even an explanation. Are these really rights or just policy preferences subject to change when politically inconvenient. Worst of all, the groups most affected by these overrides are often minorities, people who don't have the political power to fight back through elections. That's why we have a Charter, to protect fundamental rights even when they are unpopular. Every unchecked use of the notwithstanding clause teaches the next government that there's no cost to breaking the rules, just a shortcut through them. And history tells us that rights never disappear all at once. They erode quietly, clause by clause, until one day we look back and wonder when we stopped caring. The notwithstanding clause was supposed to be the exception. If it becomes the rule, the Charter won't fail all at once. But it will fade. And with it, the promise once made to every Canadian: "You are safe here."