Front Burner (CBC)

Episode Summary: Is the Notwithstanding Clause Bad for Democracy?

Date: November 21, 2025
Host: Jamie Poisson
Guest: Jared Wesley (Professor of Political Science, University of Alberta)

Main Theme

This episode delves into the history, purpose, and contemporary use of Canada’s 'notwithstanding clause' (Section 33 of the Charter of Rights and Freedoms). Host Jamie Poisson and political scientist Jared Wesley explore why it was created, the tension between parliamentary and judicial power, the evolution of its use in Canadian politics—especially recent, increasingly frequent interventions—and whether its application undermines Canadian democracy or is a necessary legislative safeguard.

Key Discussion Points & Insights

1. What is the Notwithstanding Clause?

• Definition: The clause is part of the Charter of Rights and Freedoms. It allows federal and provincial legislatures to override certain Charter rights for up to five years, provided the process is open and transparent.
• Coverage: Applies to sections 2 and 7 through 15—encompassing freedoms of conscience, religion, expression, association, legal rights, and sections about life, liberty, and security of person. The right to vote and official languages are excluded.
• Renewal: There's no limit on how often it can be renewed after the mandatory five-year review.

  “A government must receive the approval of its legislature every five years, which was built in to allow voters to weigh in every so often…” — Jared Wesley (04:42)

2. Origins and Constitutional Bargain

• Historical Compromise: The clause was a crucial compromise in the 1982 constitutional negotiations, demanded especially by Alberta’s Premier Peter Lougheed and other premiers wary of federal overreach.

  “Mr. Trudeau wanted the charter. We were only prepared to have the Charter with the notwithstanding clause. So hence the negotiation would have fallen apart and there would not have been a new constitution for Canada.” — Peter Lougheed (05:20)

• Parliamentary Supremacy vs. Judicial Review: Premiers insisted that elected legislatures—not judges—should have ultimate authority on sensitive rights questions.

  “We’ve never been anything other than a proponent of a charter of rights, but it had to be done in our judgment, in a way that did not affect the supremacy of the elected people.” — Peter Lougheed (05:39)

• Trudeau’s Reluctance: Pierre Trudeau accepted the clause only to achieve a Charter; he envisioned universal rights, equally enforced across Canada, and was disappointed by this exception.

  “If he had his druthers, of course, we wouldn't have a section 33 or notwithstanding clause…” — Jared Wesley (07:28)

3. Early and Evolving Usage

• Quebec’s Reaction: Feeling excluded and aggrieved during the “Night of the Long Knives,” Quebec invoked the clause broadly after 1982, applying it retroactively and preemptively to all laws until 1985, and many more times in the following decade.

  “Quebec’s use of the notwithstanding clause in the 80s and 90s is really a reaction to that treachery in their minds that happened one evening in 1981.” — Jared Wesley (11:35)

• Elsewhere in Canada: Other provinces rarely used the clause until the late 2010s. Previous attempts in Alberta and Saskatchewan were generally walked back after public opposition.

  “So it’s really only been in the last five or six years … that provincial governments have taken this step seriously and actually put it into law outside of the province of Quebec.” — Jared Wesley (12:04)

4. Recent Trends: The Clause Returns to the Fore

• Uptick in Use: Since around 2017, Ontario, Saskatchewan, and Alberta have begun using the clause more, sometimes preemptively—without even waiting for courts to rule.
  • Ontario: Election financing and teacher strikes
  • Saskatchewan: Education, pronoun policy
  • Alberta: Most recently, to override legal challenges to laws about transgender youth and striking teachers
• Why Now?
  • Generational Change: Few current politicians or staff were involved in, or remember, the fraught constitutional negotiations of the 80s. The “C word” (Constitution) became taboo, but norms have faded.
  • Political Culture Shift: The rise of populist conservatism sees more willingness to use every tool to reach political goals, rather than respecting prior customs restricting use of the clause as a “last resort.”

  “There's respect for tradition, respect for laws…towards a more populist form of right wing thinking where ends matter a little bit more than means.” — Jared Wesley (17:32)

5. Contemporary High-Profile Cases and Legal Tensions

• Bill 21 (Quebec): Prohibits religious symbols for public servants. Survived challenges so far, heading to the Supreme Court, which could clarify limits on preemptive use.
• Saskatchewan: Pronoun Policy Invoked to prevent minors from using certain names/pronouns in school without parental consent—again, sparking debate on using the clause before courts rule.

  “Two high profile ones that highlight the issue of whether governments can act preemptively…without the courts having weighed in…” — Jared Wesley (14:19)

• What’s at Stake: Courts may decide if governments must exhaust ‘Section 1’ (justifiable limitations in a free and democratic society) before reaching for Section 33 (notwithstanding).

6. Federal Politics and the Clause

• Pierre Poilievre’s Promises: The Conservative leader pledged to use the clause federally to enforce “life means life” sentencing and to reverse Supreme Court decisions. Wesley notes some nuance: these pledges are reactive, following court rulings, not preemptive.

  “If we’re using the Lougheed standard…Polyev’s use…[is less problematic than] Daniel Smith’s.” — Jared Wesley (24:17)

7. Concerns for Democracy

• The Core Tension: Balancing majority rule (democracy) and protection of minority rights (liberalism).

  “There’s this tension in liberal democracy between liberalism…protections of minority interests…and democracy…the most popular ideas should be the ones that make their way into law.” — Jared Wesley (25:52)

• Risk of Majoritarian Excess: When the majority, via elected parliaments, curbs minority rights unchecked, democracy risks becoming illiberal or even authoritarian in outlook.

Notable Quotes & Memorable Moments

• Jamie Poisson on the stakes:

  “So she is using the notwithstanding clause to bypass those challenges altogether. Less than a month ago, Smith’s government used the clause to order striking teachers back to work. She’s not alone. Across the country, politicians are using it or promising to more and more.” (01:18)

• Peter Lougheed on Charter negotiations:

  “We were only prepared to have the Charter with the notwithstanding clause…otherwise there would not have been a new constitution for Canada.” (05:20)

• Jared Wesley on political culture:

  “For years…most people were shy about even talking about the Constitution. It became the C-word …” (17:32)

• On populist shift:

  “…form of right-wing thinking where ends matter a little bit more than means…if they've got an end in mind, then we look for ways to use the system regardless…” — Jared Wesley (17:57)

• Lougheed’s doctrine (what is a “last resort”):

  “Peter Lougheed laid out quite clearly…that governments should try everything they can to avoid using the notwithstanding clause…in a way that minimally impairs the rights of folks that are affected.” — Jared Wesley (20:40)

• On majority vs. minority rights:

  “Where people start to get worried is where the pattern starts to accumulate in one direction or another. And that's really where you're seeing a lot of the resistance here in Alberta, is that folks are saying we're tipping too much to the populist side.” — Jared Wesley (27:21)

• Jamie Poisson on party lines:

  “Is the clause itself becoming this very partisan issue?” (27:51)

• Jared Wesley:

  “I think it is more of an ideological dispute than a partisan one…It’s a bit of a misnomer to say that the Conservative Party ... is in favor of the use of the notwithstanding clause. I don’t think that’s accurate.” (27:56)

Important Timestamps

• 02:48 — Definition and operation of the notwithstanding clause
• 05:20 — Peter Lougheed explains the clause’s role in constitutional negotiations
• 06:10 — Motivation of Lougheed and allies; defense of parliamentary supremacy
• 07:00–08:05 — Pierre Trudeau’s vision and compromise
• 10:14 — Quebec applies the clause broadly after 1982
• 12:04 — Historical rarity, and the recent uptick outside Quebec
• 13:29–15:31 — Current legal cases (Bill 21, Saskatchewan pronoun policy)
• 17:09–19:12 — Why is the clause being used more now? Generational change and political shift
• 20:40–22:26 — Danielle Smith’s use vs. Lougheed’s original intention
• 22:39–24:28 — Federal use, Pierre Polievre's approach, and contrasts to provincial actions
• 25:52 — Democratic tensions: majoritarian risk vs. liberal rights

Tone & Style

• Informative, balanced, conversational. Host Jamie Poisson asks for clarity and context, while Jared Wesley provides historical, legal, and political analysis in plain, accessible language. When discussing specific politicians, both use direct quotes and fair assessments but do not shy away from critique.

Summary for New Listeners

The episode offers a comprehensive, accessible primer on the notwithstanding clause: its purpose, origins, evolution, and its increasingly prominent role in Canadian political life. Through insightful commentary, historical context, and current events, Jamie Poisson and Jared Wesley illuminate the ongoing debate: Is the clause a necessary democratic tool to check judicial overreach, or does its contemporary use threaten Canada’s democratic safeguards for minority rights? With key cases pending before the Supreme Court, the future scope and legitimacy of the clause remain hotly contested, making this discussion timely and essential.