Based on coverage from CBC, Yahoo News, Mirage News, and South Asian Daily.
Justice Minister Sean Fraser is signalling Ottawa may try to put some clearer limits around how governments use the notwithstanding clause, as the Canadian Charter of Rights and Freedoms hits its 44th birthday.
Speaking to CBC News during a visit to Library and Archives Canada’s preservation centre in Gatineau, Que., Fraser said he’s increasingly worried that Charter rights are being treated like something you can simply switch off when they get inconvenient. “If the rights that we have written in the Charter of Rights and Freedoms are existing on paper, but not enjoyed in our communities, is the Charter worth the paper on which it’s written?” he asked.
Sean Fraser warns on notwithstanding clause
At the centre of Fraser’s concern is Section 33 of the Charter, better known as the notwithstanding clause. It allows federal, provincial, and territorial governments to temporarily override certain Charter protections for up to five years at a time, as long as the government renews it. Once invoked, it blocks court challenges based on rights like freedom of expression, freedom of religion, and equality rights.
Section 33 was designed as a last-resort tool for exceptional circumstances. Fraser argues it’s starting to look more like a routine workaround. He told CBC he has “significant concerns” about repeated use of the clause to pass laws that, in his view, “do violate or could violate the rights of Canadians.”
What Section 33 does in Canada
Fraser said he’s not looking at constitutional amendments. Instead, he’s open to clarifying how the clause should be used, potentially through some kind of framework or “guardrails.” He also stressed Ottawa isn’t the provinces’ “babysitter” on Section 33, suggesting he’s trying to balance federal leadership with the political reality that provinces guard their constitutional space fiercely.
A major factor in the timing is the Supreme Court of Canada. Fraser says he’d like to see what the court says first in a high-profile case involving Quebec’s secularism law, Bill 21. Bill 21 bans some public employees, including teachers, from wearing religious symbols at work. Quebec used the notwithstanding clause to shield the law from certain Charter challenges.
Supreme Court ruling on Quebec Bill 21
The Supreme Court decision on Bill 21 is expected in the coming months and could shape how far governments can go when they invoke Section 33, especially pre-emptively to block court scrutiny from the start.
Quebec has used the notwithstanding clause more than any other province, but it’s not alone. Saskatchewan, Alberta, Ontario, and the Yukon have also invoked Section 33 in recent years, adding to the sense that the tool is becoming normal political equipment, not a constitutional fire extinguisher behind glass.
Legal experts warn of Charter erosion
Some legal scholars think Ottawa shouldn’t wait for the Supreme Court.
University of Ottawa law professor Errol Mendes said the federal government should move sooner, warning of a “slow death of the Charter” if Section 33 keeps getting used frequently. Martha Jackman, a professor emeritus at the University of Ottawa who specializes in constitutional law, put it even more bluntly: “Every time section 33 is invoked, that is a nail in the coffin of the Charter.”
Jackman also argues the Charter isn’t always delivering for people in social justice fights, pointing to areas like encampment evictions and government inaction on climate change, where Charter-based arguments can be hard to win.
Others caution against writing the Charter’s obituary. Bill Black, a professor emeritus at the University of British Columbia, said the Charter still has “a lot of potential,” adding that compared to the United States, Canada is “very lucky” to have the Charter and the courts interpreting it.
Ottawa options and political pressure points
Fraser says he’s considering Ontario Sen. Peter Harder’s Bill S-218, which would amend the Constitution Act to set conditions on Ottawa’s use of the notwithstanding clause. Parliament has never invoked Section 33, but Conservative Leader Pierre Poilievre has said he would.
Manitoba is also moving on its own track, introducing legislation that would automatically refer any provincial law invoking Section 33 to the Manitoba Court of Appeal for an opinion on whether it violates Charter rights. Harder has said he hopes other provinces follow that approach.
Meanwhile, the federal government is facing its own Charter questions. Ottawa is asking the Supreme Court of Canada to consider an appeal after the Federal Court of Appeal found the federal use of the Emergencies Act during the 2022 convoy protest in Ottawa was unconstitutional and violated Charter rights. Fraser also denies accusations from religious groups and the Conservatives that the government’s anti-hate bill, Bill C-9, limits religious freedom.
Fraser has rejected using federal “disallowance” as a tool to smack down provincial use of Section 33, an idea that was proposed and voted down at the Liberal convention in Montreal. His preferred remedy is more democratic than dramatic: Canadians using their Charter-protected rights to speak, organize, and vote.
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