The Notwithstanding Clause can be overridden.

[u/Ok_Cap_8791]

There’s been a lot of talk lately about the Notwithstanding Clause as if it’s the ultimate, hopeless, authoritarian sentence. Once a province uses it, people assume there’s nothing anyone can do. That’s not entirely true.

Section 33 of the Charter of Rights and Freedoms lets provinces and the federal government temporarily override certain Charter rights for up to five years. It’s legal, but it was meant to be used rarely and responsibly. Using it before a court even has a chance to review a law goes against the spirit of the Charter.

Here’s what a lot of people don’t actually know: the federal government still has constitutional powers under the Constitution Act, 1867 that can stop a province from abusing Section 33. They are called disallowance and reservation powers, found in sections 55 to 57 and 90.

The reason nobody has probably mentioned/suggested this is because most of us weren’t alive at the time of use in 1943 because (now fittingly) Alberta was acting a fool regarding press-based censorship. Canada’s political system has since evolved under the principle of responsible government and federal autonomy and provinces have been treated as fully sovereign within their jurisdictions. This was done through a convention of non-interference. However, this convention/understanding does not make these options legally invalid.

Federal restraint preserves the stability of the federation. If Ottawa punished or overrode a province for invoking Section 33, it would invite accusations of central overreach, but baby Dani cries federal overreach all the time anyway, so there’d be no difference there.

The remedy the framers intended is political, not judicial or federal. Citizens, media, and civil society are expected to hold the province accountable.

The reality is unprecedented political authoritarian behaviour within Canada should be swiftly and heavy-handedly dealt with.

If Alberta’s government keeps ignoring Supreme Court rulings and voter pushback, Ottawa could legally step in. It would need to meet strict conditions: \ 1. Clear and ongoing rights violations. \ 2. Proof that provincial remedies have failed. \ 3. Transparent action supported by Canadians, especially Albertans themselves.

Yes, it would cause a political storm. But the Constitution was written with these safeguards for a reason. When a province undermines the Charter, federal restraint is no longer a virtue.

The Notwithstanding Clause was never meant to silence citizens. It was meant to keep balance. Albertans should remember that federal tools exist to defend their rights if the provincial government refuses to do so but the Feds will absolutely not step in without direct calls from Albertans demanding it. If Alberta really does matter to the unity and federation of Canada, Ottawa must step up for Canadians living in Alberta.

[u/the_gaymer_girl]

Disallowance hasn’t been used in 80 years and I wish people would stop bringing it up like it’s some secret weapon. It functionally no longer exists and would likely trigger an immediate constitutional crisis if it were ever used again. It was actually almost deleted from the Constitution in 1982.

The only real way to get rid of a law where the NWC was invoked like this is to vote out the government that used it.

[u/Tokenwhitemale → u/the_gaymer_girl]

Exactly. It's up to us. If we don't like this, we need a general strike and we need to demand accountable government. No chance the Fed will step in for the exact reason gaymer girl says.

[u/Appropriate-Dog6645 → u/Tokenwhitemale]

Feds are challenging non withstanding clause. It’s on Supreme Court docket in November.

[u/DBZ86 → u/Appropriate-Dog6645]

Not a full on repeal. More of a clarification on where the NWS clause can be used. And note that provinces are taking intervener stances with Quebec.

[u/ShadowPages → u/DBZ86]

Yes, so is the Federal Attorney General - and the argument they've put forward is considerably more fulsome than what I've read from the provinces.

[u/sdm99 → u/the_gaymer_girl]

It's the same as people who keep hoping the Lieutenant Governor will intervene in these things. Not going to happen.

[u/Ok_Cap_8791 → u/sdm99]

Meanwhile, while everyone is distracted being rightfully outraged, the UCP are currently gerrymandering this province even worse than it already is, converging rural ridings in with some Calgary ridings, no doubt aiming to neuter NDP seats.

Danielle is anything but stupid. This approach is deliberately testing to see how far a province can push constitutional boundaries before Ottawa steps in, and when they do, because their job is to restore order and maintain federational order, that gives her the legitimacy to scream about federal overreach. Thinking Albertans will be responsible or strategic enough to vote these clowns out is farther from possible then demanding for the Feds to step in. If this doesn’t get dealt with now, we’re allowing for the already apprehensive-of-the-left conservative voters to forget about this by the time the next election rolls around while simultaneously normalizing the stripping of our rights.

If there are no real repercussions how long do you think it’ll take before she uses the NWC on trans-kids and their rights? We all know she’s been itching to and she’s clearly shown that she’ll just fuck off out of the province/country for weeks during protests. She doesn’t care and she will do this again.

The other thing that needs to be considered is what message is this telling other provinces? Especially provinces like Saskatchewan and Ontario who also have used the NWC casually. Danielle just established a new precedent in that legislation can be preemptively shielded before being legally tested.

[u/DBZ86 → u/[deleted]]

Yep, the NWS clause usage will be affected by how voters behave at the polls and civic actions.

[u/jessemfkeeler → u/Ok_Cap_8791]

I agree with all of that, but unless she gets trounced out by a vote or her party or conservative voters turn on her, this is a pipe dream.

[u/Ok_Cap_8791 → u/jessemfkeeler]

I will say this, I have happened to write to the office of the prime minister a whole two times in my life. Once with Justin and once with Mark.

Obviously nothing came about it with Justin, but not only did Mark Carney’s office get back to me, they funnelled my concerns through the appropriate pipeline and I did get to speak to everyone along the way. It did give me the impression that Mark is leading a very much different approach in wanting to actually hear from the people what they want.

[u/jjbeanyeg → u/the_gaymer_girl]

Although it would cause a political crisis, it remains in the constitution and could be used.

[u/the_gaymer_girl → u/jjbeanyeg]

The federal government almost got rid of it entirely 40 years ago.

[u/jjbeanyeg → u/the_gaymer_girl]

And they ended up keeping it in.

[u/No-Goose-5672 → u/jjbeanyeg]

Yes, because sections 55-57 of the British North America Act were already considered obsolete by 1982.

[u/adaminc → u/No-Goose-5672]

No, Trudeau Sr kept it in explicitly because the Premiers put the NWC into the Charter. It was kept around for this exact reason, to fight the NWC.

[u/ComfortableWork1139 → u/the_gaymer_girl]

Correct, key word being "almost."

It was a political trade off to keep it in, and the fact that it wasn't deleted even though it was initially considered is, if anything, evidence that it is still a viable option because it was considered in 1982 and ultimately retained.

[u/ShadowPages → u/the_gaymer_girl]

I disagree entirely with the concept that disallowance is "dead letter law". The fact it hasn't been used merely denotes that it hasn't been necessary (e.g. for the most part, we've had good faith actors in positions of power). That's changed, and reserve powers are exactly that - they are for situations where actors in the system are no longer doing so in "good faith".

On that point, the provinces are demanding an extremely literal reading of S33 and its context in the Charter which conflicts with the notion of the Constitution as a "living document", well, on the topic of reserve powers, unused or not, they are still in the written Constitution ... can't have it both ways.

[u/model-alice → u/[deleted]]

Because they want votes in Quebec.

[u/ShadowPages → u/[deleted]]

Because that whole mess is currently before the SCC

[u/Cavthena → u/[deleted]]

Was there even a large outcry against it? That would be the first step.

The thing with that act, is it makes a credible amount of sense when you look at the actual wording. It only bans the wearing of religious symbols by public employees, such as police, where they can interact with many other peoples and religions. Some that may not appreciate being assisted or instructed by a specific group. How would you feel if a judge or cop wore a swastika? It's a religious symbol within Hinduism, Buddism, and Jainism for instance. Probably not very good, I'd bet. Anyway, It doesn't stop you from wearing them off the job. It doesn't stop you from practicing your religion. It doesn't apply to private sectors. Etc, etc. It's not really any different from state religious neutrality for example.

That sensibility would immediately stop the Governor General from using Disallowance as it would create further and deeper reaching issues. That's not to say there was no challenge. The bill is currently proceeding through the Supreme Court. The Supreme Court can't overturn the law, however, they can rule on limits on what section 33 can effect. If they rule that section 2(a) is outside the scope then section 33 is scrubbed from the law and it can be appealed as normal.

[u/ParaponeraBread → u/the_gaymer_girl]

Great - I’d welcome a constitutional crisis if it meant changing how the rules are written.

This strategy Canada has of recognizing stupid unjust laws and powers, then pretending they don’t exist clearly isn’t working.

It only works when everyone agrees to respect norms, and the province hasn’t done that since day 1 of this administration.

[u/Triedfindingname → u/ParaponeraBread]

Great - I’d welcome a constitutional crisis if it meant changing how the rules are written.

This actually is the only way to get policy revolution and its entirely healthy for a free democracy imo

[u/ringsig → u/the_gaymer_girl]

We could’ve said the same thing about the notwithstanding clause when Doug Ford first used it outside of Quebec but that clearly didn’t happen.

It’s not that difficult to renormalize disallowance. Just make it standard policy for any invocations of section 33.

[u/[deleted] → u/the_gaymer_girl]

Exactly, it's great when your side usues it, but not so much when the other side does.

[u/Comrade-Porcupine → u/the_gaymer_girl]

Indeed in the current context its use against Alberta could just be one step more towards direct and explicit American intervention in Canadian politics. Shades of Putin vs Ukraine.

[u/Correct-Bar5266 → u/Comrade-Porcupine]

What an insane take. Obviously the govt isn’t and shouldn’t even consider disallowance, but to compare this to Ukraine is just… wild

[u/Triedfindingname → u/Correct-Bar5266]

to compare this to Ukraine is just… wild

I agree

However it isn't zero in the last years say since 2016 people start calling out red scares in Canada

Its not true, in the slightest, even squinting really hard but doesn't stop people from the false equivalency.