Fundamental Freedoms

Fundamental Freedoms are basic political liberties required in a democracy. In general, they guarantee that an individual can act, think, be, or do without government interference unless a law says otherwise.[1]

Fundamental Freedoms are found in section 2 of the Canadian Charter of Rights and Freedoms. This section guarantees the following freedoms to everyone in Canada:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including

(d) freedom of association

The Supreme Court of Canada (SCC) interprets these freedoms in a broad way. For example, in the R v Big M Drug Mart Ltd. decision, the SCC specified that section 2 “embraces both the absence of coercion and constraint, and the right to manifest such beliefs and practices.”[2] In that case, the Court found the ban on Sunday shopping violated freedom of religion since the law’s purpose was to force the Christian religious observance on all Canadians.[3]

Fundamental freedoms became increasingly important to the international community and to Canadians after the horrors of the Second World War. The United Nations adopted a set of fundamental freedoms in the Universal Declaration of Human Rights in 1948.[4] Parliament first recognized similar freedoms in 1960 through the Canadian Bill of Rights. But as an ordinary federal statute, and not part of the Constitution, the protections given in the Bill of Rights had no more force than any other law. They also did not protect Canadians against provincial laws. In the late 1960s, P.E. Trudeau championed a bill of rights to be inserted into the constitution to “guarantee the fundamental freedoms of the individual from interference, whether federal or provincial.”[5] This guarantee was realized through patriation in 1982 and the Charter of Rights and Freedoms.

While “fundamental,” these freedoms are not absolute. Legislatures can override them by using the notwithstanding clause. However, the notwithstanding clause has never been used to override fundamental freedoms. Additionally, section 1 of the Charter establishes that the rights guaranteed within it are subject to “reasonable limits” that are “justified in a free and democratic society.”[6]

For example, in R v Keegstra the SCC ruled that the law against the willful promotion of hatred violated Keegstra’s freedom of expression, but that the law was justified under section 1. Keegstra’s anti-Semitic speech went against the very principles of democracy that the freedom of expression was supposed to protect. Hateful expression harms democracy when its targets face such scorn and disrespect that they no longer participate in the process. [7] Therefore, the law in this case was found to be a reasonable limit on freedom of expression.

[1] Walter S. Tarnopolsky, The Canadian Bill of Rights, 2d ed (Toronto: McClelland and Stewart, 1975) at 2.

[2] R v Big M Drug Mart Ltd., 1985 CanLII 69 at para 95 (SCC).

[3] Ibid at para 97.

[4] Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948) 71, ss 18-20

[5] The Honourable Pierre Elliot Trudeau, Minister of Justice, A Canadian Charter of Human Rights, January 1968 in Anne Bayefsky, Canada’s Constitution Act 1982 and Amendments: A Documentary History (Toronto: McGraw-Hill Ryerson, 1989), at 51-53.

[6] Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11, s 33.

[7] R v Keegstra, 1990 CanLII 24 (SCC).

What is the Notwithstanding Clause?

This article was written by a law student for the general public.
Updated: May 31, 2017

33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

What is the Notwithstanding Clause?

Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause”.[1] Provincial or federal governments can use section 33 when they want to protect a law that violates fundamental freedoms, legal rights, or equality rights. The clause is an acknowledgement that there can be situations where a government will want to pass a law, or maintain an existing law, that disregards Charter-protected rights or freedoms.

Why do we have a notwithstanding clause?

When the Charter was drafted, federal and provincial lawmakers were divided on including section 33 in the Charter.[2] Its supporters believed the clause would protect democracy by giving elected law-makers control over important issues and preventing the unelected judges from having too much power. Those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could jeopardize the Charter’s purpose of protecting individual rights against the government.[3]

Supporters included provinces such as Alberta, Saskatchewan, and Manitoba, who were worried the Charter would limit their power to make necessary laws. Having section 33 in the Charter preserved provincial sovereignty.[4] Including the notwithstanding clause secured these provinces’ support of the Charter.

When can it be used?

The notwithstanding clause is rarely used, and only when the government has powerful public policy reasons to justify it.[5] The clause can only be used for laws that affect fundamental freedoms in section 2 of the Charter, such as freedom of expression or freedom of religion, legal rights in sections 7-14 such as the right to life, liberty and security, and equality rights in section 15.[6]

For example, in 2000, Alberta tried to apply the clause to override same-sex marriage in the province. The Supreme Court had ruled that same-sex marriage was constitutional but the Alberta government did not want to follow this decision. Therefore, they added the notwithstanding clause to the Alberta Marriage Act to make it clear that marriage was only legal between a man and a woman. However, this use of the notwithstanding clause was found invalid because marriage is not in provincial jurisdiction.[7] Only the federal government can decide what marriages are legal.

How can it be used?

When a government decides to use the notwithstanding clause it must clearly state that its law will operate despite its potential to violate sections of the Charter.

The use of the notwithstanding power can only last for five years, after which it can be renewed for additional five-year periods.[8] A practical effect of the five-year limit is that it generally coincides with the length of electoral terms. As a result, the public has an opportunity in an election to challenge their government’s decision to use the notwithstanding clause if they so wish.[9]

When has it been used?

As of May 2017, the notwithstanding clause has been used 17 times by the governments of Quebec, Alberta, Saskatchewan, and the Yukon.[10] Here are a few examples:

Quebec

Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time.[11] The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.[12]
In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression because companies could not express themselves in their language of choice. Quebec passed a new version of the same law with the notwithstanding clause attached. This new law allowed the French-only signs to continue. The law was not renewed when the five-year limit ran out.

Saskatchewan

Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.[13]
In 2017, Saskatchewan Premier Brad Wall announced his decision to use the notwithstanding clause to protect school choices for students and parents, regardless of their faith.[14] The Premier’s announcement was in response to a Saskatchewan court decision that would possibly jeopardize the funding for non-Catholic students who attend Catholic schools. Using the notwithstanding clause will allow the province to continue funding students regardless of their faith and school choice. The Ministries of Education and Justice are tasked with drafting the new law.[15] The court’s decision is currently on appeal.

Alberta

In 1998, Alberta tried to use the clause to limit compensation to victims of a forced sterilization program. Forced sterilization had infringed the victims’ right to life, liberty and security of the person. However, the proposed bill was withdrawn due to public protest against it.[16]
As mentioned earlier, Alberta also tried in 2000 to apply the notwithstanding clause to override same-sex marriage in the province.

For more information:

Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991), (1998) Points of View no 6.
Allan E. Blakeney, “The Notwithstanding Clause, the Charter and Canada’s Patriated Constitution: What I Thought We Were Doing” (2010) 19:1, 2 & 3 Const Forum Const 1.

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 33 .

[2] Peter W Hogg, Constitutional Law of Canada, vol 2, 5^th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 39.2. [Hogg].

[3] Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991) at 4.

[4] Ibid at 2; Barbara Billingsley, “Section 33: The Charter’s Sleeping Giant” (2002) 21 Windsor YB Access Just 311 at 333; Hogg, supra note 2 at 39.2.

[5] Hogg, supra note 2 at 39.8.

[6] Charter, supra note 1, s 33(1).

[7] Hogg, supra note 2 at 39.2.

[8] Charter, supra note 1, ss 33(3)– (5).

[9] Hogg, supra note 2 at 39.5.

[10] Billingsley, supra note 4 at 339.

[11] Hogg, supra note 2 at 39.1.

[12] Ibid.

[13] RWDSU v Saskatchewan, [1987] 1 SCR 460.

[14] Stefani Langenegger, “Sask. to use notwithstanding clause to override Catholic school ruling”, CBC News (01 May, 2017), online: <www.cbc.ca/news/canada/saskatchewan/sask-notwithstanding-catholic-1.4093835>

[15] Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212 and The Government of Saskatchewan, 2017 SKQB 109.

[16] Billingsley, supra note 4 at 341.