The Government of Alberta recently passed a number of Bills including: “Bill 2: the Back toSchool Act” and “Bill 9: Protecting Alberta’s Children Statutes Amendment Act, 2025”. In those
two specific Bills, the Alberta Government invoked a provision of the Constitution often referred
to as the ‘Notwithstanding’ Clause. The legislation inspired reactions across the province and the
country, some commentators praising the strong move while others condemning the government
for overreach. This post will provide a brief overview of what the Notwithstanding Clause is
what it allows a government to do. The post will conclude by exploring what may come next in
the ongoing saga surrounding this controversial section of the Constitution.
In this post:
- What is the Notwithstanding Clause?
- What rights can the Notwithstanding Clause affect?
- How does it work and who does it affect?
- What comes next?
- Conclusion
What is the Notwithstanding Clause?
In 1982, the Canadian Government repatriated the Constitution. What that means is the
Government, with the cooperation of the majority of provinces, took over ultimate control of the
Constitution from Great Britain. This allowed the Government to amend the Constitution and
establish the Charter of Rights and Freedoms which protect individuals from state interference.
One section of the newly minted Constitution Act of 1982 was Section 33: the Notwithstanding
Clause.
Section 33 states that Parliament or the legislature of a province can expressly declare that a law
“shall operate notwithstanding” a provision included in section 2 or sections 7 to 15 of the
Charter. This means that if a government uses the Notwithstanding Clause, it can pass a law and
put that law into effect even if that law violates certain rights protected by the Charter.
What Rights can the Notwithstanding Clause Affect?
The Notwithstanding Clause is limited in what rights it can overrule. A law passed using the
Notwithstanding Clause can only limit operation of section 2 or sections 7 to 15 of the Charter.
Specifically, the Notwithstanding Clause can allow a government to pass a law that violates any
or all of the following rights:
- Section 2 – Fundamental Freedoms (of conscience and religion, of expression, of
peaceful assembly, and of association); - Section 7 – Right to life, liberty, and security of the person;
- Section 8 – Right to be secure against unreasonable search and seizure;
- Section 9 – Rigth to not be arbitrarily detained or imprisoned;
- Section 10 – Right to be informed of the reason for arrest and to consult legal counsel;
- Section 11 – Right to be tried in a reasonable time, to be presumed innocent until proven
guilty, and to not be denied reasonable bail without just cause; - Section 12 – Right to be free from cruel and unusual punishment;
- Section 13 – Right against self-crimination;
- Section 14 – Right to an interpreter; and
- Section 15 – Right to be treated equally regardless of race, colour, ethnic origin, religion,
sex, age, or mental or physical disability.
As can be seen in the list above, invoking the Notwithstanding Clause can nullify some very
important rights enjoyed by all Canadians.
When invoking the Notwithstanding Clause, a government can specifically list the rights it
wishes to be able to ignore as was done by the Government of Saskatchewan in 2023. In August
of that year, the Saskatchewan Government passed Bill 137: “The Parent’s Bill of Rights” that
would operate notwithstanding sections 2, 7, and 15 of the Charter. Alternatively, the
Government of Alberta in passing Bills 2 and 9 noted in the introduction used what some
commentators refer to as a “shotgun approach” by stating those laws shall operate
notwithstanding sections 2 and 7 to 15 of the Charter. But how exactly does this all work?
How Does it Work and Who Does it Affect?
When invoked, the Notwithstanding Clause means that even if a law violates a person’s Charter
rights, that person can not challenge the law in court as they normally could. To put this into
perspective, the normal process would look something like this:
- A government passes a law;
- A person feels that law violates their rights;
- The person goes to Court to challenge the law saying it violates the Charter and therefore
is illegal; - The Court determines if the persons rights are violated and, if so, if the violation is
justified; - If the violation is justified, the law stays in effect. If the violation is not justified, the
Court can strike the law down and the law no longer operates.
However, when the Notwithstanding Clause is invoked, the above process stops after the second
step. Even if a person feels their rights are being violated by the law, the Notwithstanding Clause
protects the law from being struck down by the Court for those violations.
As mentioned above, there are a few subsections to the Notwithstanding Clause that place
limitations on how it operates. These limits include a specific lifespan where after five years the
impugned law is no longer protected from being struck down by a Court. This limit can be
bypassed by a government reinvoking the Notwithstanding Clause and gaining another five years
of the law’s operation.
Under the current laws mentioned above, Saskatchewan’s use of the Notwithstanding Clause
expires in 2028 and laws passed by the Government of Alberta will stop being protected by the
Notwithstanding Clause in 2030. It should be noted here that though the information above
makes this issue seem cut and dry, there are ongoing legal battles that may change the current
understanding of the Notwithstanding Clause. Some of these legal challenges are discussed
below.
What Comes Next?
In Saskatchewan, the Government’s use of the Notwithstanding Clause was challenged. The
University of Regina Pride Center asked the Saskatchewan Court of King’s Bench to declare that
the law violated the Charter even if the Court could not strike the law down. This application was
appealed and the Saskatchewan Court of Appeal agreed that the Court could say whether the law
violated the Charter. The Government disagrees with this interpretation and asked the Supreme
Court to hear the case. In November of this year, the Supreme Court granted leave and will hear
the case in 2026. As such, it is still unclear whether a law invoking the Notwithstanding Clause
can even be assessed by the Court.
In Alberta, the Government’s use of the Notwithstanding Clause is being challenged on several
fronts. The Albera Teachers’ Association is challenging Bill 2 as an “overly broad and improper”
invocation of the Notwithstanding Clause. This challenge is focussed on the Alberta
Government’s ‘shotgun’ approach mentioned above, invoking the Notwithstanding Clause to
protect the law against challenges under all of the allowable Charter rights rather than specific
rights as was done in the Saskatchewan law. As this particular argument is still before the Court,
we do not know if there are any such limits on a Government’s use of section 33.
Alberta’s Bill 9 is being challenged by Eagle Canada, Skipping Stone and five Albera Youths
claiming the law violates their section 7, 12, and 15 Charter rights. This case is also before the
Courts and it is unclear how the case will be handled in light of the Saskatchewan case recently
granted leave by the Supreme Court.
Will the Court be allowed to decide if Bill 9 violates the Charter even if the law will remain in
effect? Can a government use a ‘shotgun’ approach when invoking the Notwithstanding Clause?
Is the Notwithstanding Clause an absolute shield against judicial scrutiny? These questions will
be before every level of Canadian Court over the next year and we may get some answers before
ringing in 2027.
Conclusion
For those directly affected by a government’s use of the Notwithstanding Clause, the next year
(or possibly years) will be filled with unknowns as these complex legal arguments get tested in
Court. For anyone not directly affected, it will be hard to avoid hearing both sides’ arguments as
developments in any of these cases will likely blanket news feeds for the foreseeable future.
One final question is worthy of consideration: Will the recent increase in governments’ use of the
Notwithstanding Clause affect upcoming elections in Alberta (2027) and Saskatchewan (2028) or
will these controversies become background noise, drown out by issues like cost of living and
housing affordability. Only time will tell.