Protesters gather at Queen’s Park in Toronto after Premier Doug Ford invoked the notwithstanding clause to override a court ruling that struck down his attempt to disrupt the Toronto municipal election by reducing the number of wards and councillors from 47 to 25. Photo by Eric Parker/Flickr.

“The drift into authoritarianism doesn’t always set off alarm bells. Citizens are often slow to realize that their democracy is being dismantled even as it happens before their eyes.” —Steven Livitsky and Daniel Ziblatt, How Democracies Die.

For many Canadians, the Canadian Charter of Rights and Freedoms (the Charter) is a binding legal document that protects our rights and freedoms in a plural society. But as is typically the case in the legal world, a loophole jeopardizes that assured protection.

Section 33 of the Charter, or the notwithstanding clause (NWC), has been used dozens of times in recent years by democratically elected politicians to pass several unpopular measures. While the NWC is obviously not required to pass nefarious legislation, recent uses of the clause highlight real governance challenges that Canadians must confront. The NWC limits opportunities for public awareness of and engagement with legislation and policy, restricting our ability to meaningfully participate in the democratic exchange of ideas and to shape the rules and norms that govern our lives. The global rise of authoritarianism and ongoing democratic erosion, to which Canada is no exception, emboldens politicians to use the NWC to dodge discussion, further negating their responsibilities to their constituents.

Of course, Canadian Dimension readers need no reminders of the limits of representative democracy under capitalism, or of the many policies and practices that undermine the democratic principles by which we are purportedly governed. That said, arbitrary and sometimes abusive use of the NWC to enact laws that violate constitutionally protected rights and freedoms further erodes the legitimacy of the democratic institutions that are supposed to protect people living in Canada.

This erosion is concerning because healthy, democratic governance—that is, a system of governance in which uncorrupt politicians respond to the will of an engaged and informed constituency—is integral to the actualization of a new socio-economic system that does not depend on endless growth and resource extraction at the cost of the planet and people. Those benefiting the most from the current exploitative economic system will do everything in their power to dismantle democracy, which means the impetus to build awareness on the tactics deployed in its demise and mobilize grassroots resistance against its degradation rests with the public.

How the NWC works and how it’s abused

The NWC allows the federal and provincial governments to derogate from specific sections of the Charter. These sections include Section 2 and Sections 7 through 15. Section 2 outlines the fundamental freedoms we are entitled to, including freedom of conscience and religion, freedom of thought, belief, opinion and expression, freedom of the press and other media communications, freedom of peaceful assembly, and freedom of association. Section 7 protects a person’s right to life, liberty, and security, and Sections 8 through 15 provide legal protections and rights, including the right not to be arbitrarily detained or imprisoned, the right not to be subjected to cruel and unusual treatment or punishment, the right to an interpreter in legal proceedings, and equality before and under the law, including equal protection and benefit of the law.

To use the NWC, provincial governments must propose legislation that clearly invokes Section 33 and lists the Charter sections that will be compromised. Once the law is passed, provincial and federal courts cannot strike down the law as unconstitutional due to a Charter violation. The legislation that enables the NWC automatically expires after five years, but additional laws can be passed to extend the use of the NWC for another five years. There are no limits to how many times a government can invoke the NWC, nor does its use require a legislative supermajority; thus, NWC legislation can be implemented even if 49 percent of elected lawmakers disagree with it.

In 2021, Ontario Premier Doug Ford used the NWC to pass legislation to limit spending on third-party election advertising, overriding a provincial court decision that ruled it unconstitutional. Bill 254, the Protecting Ontario Elections Act, amended the Elections Finance Act by doubling the period during which third-party political advertising is subject to spending limits, from six to twelve months before the election writ is issued. During the year ahead of the election period, third-party interest groups or individuals (namely unions in this case) are limited to $600,000 in total ad spending. These spending limits do not apply to government spending, though, meaning the incumbent government (that is, the Ford government) has more time and money on their side to run ad campaigns. According to NWC scholar Tsvi Kahana, the move suggests the Ford government was “motivated by a desire to silence opposition.”

In 2019, then Québec Premier François Legault and his government passed Bill 21, the Act respecting the laicity of the State. The law banned people working in the public service from wearing visible religious symbols like hijabs, turbans, yarmulkes, and crosses, effectively forcing government employees to choose between their religious beliefs and their jobs serving the public.

Legault’s government argued the act provided........

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