It’s time for Canada to abolish the notwithstanding clause

With Prime Minister Justin Trudeau having expressed an intention to better regulate the use of the notwithstanding clause, a majority of Canadians would prefer that Canada abolish the clause altogether.

The notwithstanding clause is a provision in the Canadian constitution that allows provinces to pass laws that shield them from potential legal challenges under the Canadian Charter of Rights and Freedoms. These provisions in the Canadian constitution are generally used in Parliament or a provincial legislature when the law being passed is thought to be good for the public despite some consequences for minorities. (Case in point, the Quebec government led by François Legault has used the notwithstanding clause in order to prevent most types of legal challenges against Bill 21 and Bill 96.)

A study by the Angus Reid Institute found that a majority of Canadians (55%) think Canada should abolish the notwithstanding clause. This sentiment is shared by majorities of Canadians in all provinces except Quebec, where 63% think Canada should keep the notwithstanding clause in place, and that it’s an important option for provinces to have.

“A majority of Canadians (55%) want to see Canada scrap the notwithstanding clause. In order to abolish the clause, Canada would need to amend the constitution, which requires approval from the House of Commons, the Senate and at least two thirds of the provinces. Almost two-thirds in Quebec (63%), which never formally approved the constitution in the first place, would keep the notwithstanding clause.”

More than half of Canadians believe the country should abolish the notwithstanding clause. A majority in Quebec would keep the clause in place.https://t.co/GTTLZNrapV pic.twitter.com/yPhzHf5Ewf

— Angus Reid Institute (@angusreidorg) January 26, 2023

The study also found that majorities of Canadians believe Ontario’s Bill 28 (63%) and Quebec’s Bill 96 (72%) were unnaceptable uses of the notwithstanding clause.

Two-in-five in Quebec believe that province's Bill 96 was an acceptable use of the notwithstanding clause. In all other provinces, fewer than one-in-ten agree.https://t.co/GTTLZNrapV pic.twitter.com/Uk8poUAs4M

— Angus Reid Institute (@angusreidorg) January 26, 2023

1 in 2 Canadians believe that the clause does in fact weaken constitutional rights and freedoms in Canada. One simply has to look at the passing of Bill 21 to demonstrate how.

“Many feel the right to religious freedom is under threat in Quebec because of the passing of Bill 21. A Quebec teacher was told she could no longer teach in a classroom because she wore a hijab. In a ruling on Bill 21, a Quebec Superior Court judge wrote the law ‘violates’ the religious freedom of Muslim women. Trudeau, in his interview with La Presse, worried that increased use of the clause in general had ‘reduced the political costs of the suspension of fundamental rights.’”

Quebecers’ support for the notwithstanding clause does bring into question prevailing attitudes towards minorities in the province.

Interestingly, a 2021 study by the Angus Reid Institute found that people in Quebec are among the least racist in Canada. Quebecers (91%), alongside Newfoundlanders (92%), were those most likely to agree that “all races are equal.” Just 9% of Quebecers agreed with a statement that could be considered definitively racist: That “some races are naturally superior to others.”

Furthermore, despite Quebec Premier François Legault’s longstanding history of denying the existence of systemic racism in the province, Quebecers are actually those most likely in Canada to acknowledge its existence, with 65% agreeing that “white people benefit from advantages in society that Indigenous people and visible minorities often do not have.”

And yet small majorities of Quebecers continue to buy into laws that have a disproportionately negative effect on minority groups.

Bill 21 is still supported by 57% across the province, despite minority support in Montreal (46%).

Bill 96 is supported by 56% across the province, with just 36% support in Montreal.

In 2023, is it really acceptable for provinces to be able to shield certain laws from the Canadian Charter of Rights and Freedoms with the notwithstanding clause?

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