In this commentary, the speaker outlines two constitutional mechanisms that shape the balance of power between Canada’s federal and provincial governments. First, the speaker explains the “notwithstanding clause” (Section 33 of the Charter), which allows provinces to pre‑emptively override Charter challenges to their legislation and notes its growing use to block collective‑bargaining rights, religious expression, and gender‑identity policies. Second, the speaker introduces Section 90, the federal disallowance power, which lets the federal cabinet nullify any provincial law within a year of its passage. Historically, Ottawa exercised this power over a hundred times in the 19th century, but the last disallowance was in 1943, largely because of political fallout. The speaker argues that the federal government should revive Section 90 to protect minorities when provinces overstep, warning that failure to use this safeguard turns rights into political props and undermines Canada’s core values.
Chapters
Canada has an escape hatch built into its Constitution. It's called the notwithstanding clause. I made a video about it earlier, but in short, it lets provincial governments preemptively override legal challenges on whether their laws violate the Charter of Rights and Freedoms. It was meant as a last-ditch emergency measure, but increasingly some provinces are using it as a matter of business, mostly to pursue laws that override collective bargaining or keep people from wearing things important to their faith, or to play politics with pronouns. What most Canadians don't know though is there is a veto button that can cancel all of that out. It's called Section 90. Now, like the Notwithstanding Clause, Section 90 is also in the Constitution. It was meant for extreme situations. The framers of the Constitution put it there to protect minorities from discriminatory provincial laws. Section 90 gives the federal government a power called disallowance. Where the federal cabinet can straight up cancel a provincial law within 1 year of it passing. Cancel! Wipe it off the books. Gone. And while a province can use the notwithstanding clause to defend its law from a Charter challenge, it can't use it to defend against federal disallowance. If the federal cabinet wanted to kill a provincial law that used the notwithstanding clause, it could. A disallowance order would erase the law entirely, override or not. In the 19th 19th century Ottawa used this power over 100 times, but its last use was in 1943. Why? Politics. The federal government hasn't touched those powers in 80 years because doing so today would set off a political earthquake. Premiers— one in particular I can think of— would lose their minds. But Canada works when governments protect the people who need it the most. That is the heart of this place. When rights become political props, that heart starts to falter. Section 90 exists for moments like we're seeing, when a province steps past the line and forgets its responsibility to everyone who calls this country home. If the federal government hides from it, we tell every premier that rights can be bargained away for applause. And if our federal government does have the courage to use it, we remind the country and our global neighbours who we are: decent people who look out for each other. The Constitution gave this country a safeguard for moments exactly like this. At some point, we need to decide which future we're willing to live with.
