The Notwithstanding Clause: Democracy’s Safety Valve or a Threat to Your Rights?

By Laura J. McPhee and Mark Jacka

If you’ve been following Canadian news at all lately, you’ve probably heard the term “notwithstanding clause” thrown around. From Quebec’s secularism laws to Alberta’s back-to-school bill forcing teachers back to work, this constitutional provision has been making headlines — and sparking debate. In this episode of Definitely Not Legal Advice, Laura McPhee and Mark Jacka break down what the notwithstanding clause actually is, how it works, and then do something fun: they each argue a side. Laura makes the case for keeping it. Mark argues against.

The result is a lively, thought-provoking conversation that proves there really is no easy answer here.

So What Exactly Is the Notwithstanding Clause?

The notwithstanding clause lives in Section 33 of the Canadian Charter of Rights and Freedoms. In plain terms, it allows federal or provincial legislatures to declare that a law will operate “notwithstanding” — that is, despite — certain Charter rights. Specifically, it can override rights in Sections 2 and 7 through 15 of the Charter. That covers your fundamental freedoms (expression, religion, assembly) and your legal rights (life, liberty, fair trial), as well as equality rights. It cannot, however, be used to override democratic rights, mobility rights, language rights, or the rights of Indigenous peoples.

Crucially, any use of the notwithstanding clause comes with a built-in expiry date: five years. After that, the government has to actively renew it or the override simply sunsets. This five-year limit was designed to roughly align with the electoral cycle, giving voters a chance to weigh in at the ballot box.

How Often Has It Been Used?

Less than you might think. Since the Charter came into effect in 1982, the notwithstanding clause has been invoked around 27 times across Canada. Quebec used it broadly from 1982 to 1985 to protest the Charter itself, and more recently for its secularism laws (Bill 21 and Bill 96). Saskatchewan and Ontario have each used or threatened it over labour disputes and education laws. Alberta’s 2025 back-to-school bill, which forced teachers back to work during a strike, is the latest major use. Interestingly, the clause has historically been used reactively — after a court struck down legislation — but its more recent uses have been preemptive, shielding laws from Charter scrutiny before they even face a legal challenge.

The Case For: Democratic Legitimacy

Laura argues that the notwithstanding clause serves three important purposes. First, it preserves democratic legitimacy by restoring decision-making power to elected representatives. Without it, unelected judges would have enormous power to invalidate laws passed by legislatures. Section 33 acts as a constitutional safety valve — if courts interpret rights too broadly or in a way that undermines elected policy choices, legislatures can step in and reassert democratic will. If the public disagrees with the override, the ballot box becomes the check.

Second, it forces transparency. Unlike quiet erosions of rights through underfunding or backroom regulation, the notwithstanding clause requires a public, formal declaration in the legislature. Governments have to own that decision politically, which invites public debate and media scrutiny.

Third, the sunset clause makes it temporary. No legislature can permanently suspend rights. The five-year limit ensures voters get a direct opportunity to weigh in, making the clause “a pause button that the public can release at the next election cycle.”

The Case Against: Protecting Minority Rights

Mark counters with three compelling arguments of his own. First, the entire point of having enumerated rights in the Charter is to protect minorities from being trampled by the majority. Governments that invoke the notwithstanding clause often weren’t elected by anything close to a true majority of voters. Using the “democratic will of the people” to justify overriding rights rings hollow when the government making that call represents a slim plurality.

Second, rights have to be strict in order to have meaning. If any government can simply water down a right to achieve its desired outcome, what’s the point of having a Charter of Rights at all? The ability to override fundamental protections — even temporarily — undermines the very concept of having guaranteed rights.

Third, Mark raises the “living tree” doctrine. The Canadian Constitution has been interpreted as a living document, meant to evolve with the times. When the Charter was written in 1982, its authors couldn’t have anticipated the internet, social media, or countless other modern realities. Judges need the flexibility to make new determinations as society changes, and the notwithstanding clause acts as an unnecessary barrier to that evolution — one that can be used to freeze an outdated interpretation of rights in place.

Where Does That Leave Us?

As Laura and Mark readily admit, this isn’t a question with a tidy answer. The tension at the heart of the notwithstanding clause — who should have the final say on the law, Parliament or the courts? — is one of the most fundamental questions in Canadian constitutional law. And with the Supreme Court set to weigh in on the clause’s scope in an upcoming hearing, it’s a question that’s more relevant than ever.

Whether you think the notwithstanding clause is a vital democratic tool or a dangerous loophole, one thing is clear: it’s worth understanding. Give the full episode a listen to hear Laura and Mark hash it out — and decide where you stand.

Definitely Not Legal Advice

A podcast by Laura McPhee and Mark Jacka of Blue Rock LLP

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice.