By Rainer Knopff*
In JANUARY 2005, 133 Canadian legal scholars wrote an open letter telling Stephen Harper to use the Charter’s section-33 notwithstanding clause (NWC).1 At the time, Harper led the official opposition to Liberal Prime Minister Paul Martin’s minority government, which had introduced legislation permitting same-sex marriage. Harper proposed amendments to preserve the traditional heterosexual definition of marriage while allowing civil unions for same-sex couples. These amendments, asserted the open letter, were so “clearly unconstitutional” that to become law they must “include a notwithstanding provision.” That was the only “honest” and effective way for Harper to proceed.
When invoked, the NWC allows legislation to “operate” for renewable five-year periods “notwithstanding” the fundamental freedoms set out in section 2 of the Charter, the legal rights found in sections 7 to 14, or the equality rights in section 15. Just as judges can be activist or restrained in their approach to Charter rights and freedoms, so legislatures can be activist or restrained in their use of the notwithstanding clause. Historically, the clause has been used mainly by Quebec, heavily during the Charter’s early years, less heavily but still regularly thereafter. Its use by other Canadian jurisdictions was “extremely limited” by comparison.2 Quebec’s legislature was activist while other Canadian legislatures were restrained.
This could have changed in 2005 had the open letter persuaded Stephen Harper to include a notwithstanding clause in his amendments, and had those amendments somehow become law.3 That would have been the first use of the clause by the national government, which might have enhanced its legitimacy throughout the country. Instead, Harper refused the open letter’s invitation, his amendments were defeated, and Martin’s same-sex marriage legislation passed. Notwithstanding a recommendation by prominent authorities to invoke the notwithstanding clause, this episode ultimately confirmed NWC restraint outside Quebec.
If that restraint had persisted, Peter Biro’s 2024 edited collection, The Notwithstanding Clause and the Canadian Charter, might not have been written. The book emerged when the regional dichotomy in NWC usage ended. Quebec still features prominently, but after decades of “relative decline”4 or near “desuetude”5 elsewhere, section 33 has come to life across the country.
Since 2018, the clause has been used to
- protect public funding for non-Catholic students in Catholic separate schools (Saskatchewan 20186),
- legislate striking education workers back to work (Ontario 2022,7 Alberta 20258),
- address trans-gender issues in schools, sports, and healthcare (Saskatchewan 2023,9 Alberta 202510),
- limit third-party election advertising (Ontario 202111),
- strengthen the protection of the French language (Quebec 202212),
- ban certain public employees from wearing religious symbols (Quebec 2019, 2024, 202513).
That’s a significant and accelerating cavalcade of recent invocations. It involves four provinces, each of which used the NWC at least twice. Various provinces actively considered and nearly used the clause on other occasions in this period.14 And had the 2025 national election turned out differently, we might well have seen its first use by the federal parliament.15
This NWC revival, indicates Peter Biro in the introduction to his collection, comes at a time of rampant “democratic backsliding,” a time when liberal constitutionalism is “everywhere under siege.” In particular, the “independence, influence and legitimacy of the judiciary,” which had been “elevated and fortified” by the Charter, are now “challenged in all quarters.”16 Is the resurgence of the notwithstanding clause part of this illiberal backsliding? Does it put Canada’s liberal constitutionalism under siege? Such questions go to the heart of the book’s concerns, says Biro.17 The value of the book lies in the very different and nuanced answers given by its contributors.
The book is also a valuable guide to a blockbuster case currently before the Supreme Court of Canada.18 The case involves challenges to Quebec’s Bill 21, the above-listed law banning religious symbols in some circumstances. Central to this case are possible new constraints on the use of section 33. Biro’s volume canvasses the arguments for and against such constraints.
One of the volume’s contributors, Gregory Bordan, aptly describes two main camps in these disputes. On one side are NWC proponents who see the clause as striking a needed “balance” between courts and legislatures. From this perspective, legislative use of the clause “can be legitimate and justified in some, or many, circumstances.” On the other side are NWC opponents who reluctantly concede the legal availability of the NWC but see its use as “always morally and politically suspect.” Whereas the proponents understand section 33 as valuably “integrated into the Charter,” opponents see it as “irreconcilably at odds” with the rest of the Charter.19
The latter view is evident in the 2005 open letter, which notes that using the notwithstanding clause is difficult to justify because Canadians “overwhelmingly support the Charter.” That formulation clearly puts the NWC “at odds” with the Charter. The letter also considers it wrong to use this “extraordinary provision” to prevent same-sex marriage. It simply insists that the NWC is the only “honest” way to pursue that “unconstitutional” goal. The open letter, in short, advises the honest use of a provision it deplores.
Those who deplore the NWC often wish it would “fall into disuse,” to use Errol Mendes’s 2002 formulation.20 This regrettable “outlier” provision, they argue, was hastily added at the end of the Charter-making process to bring reluctant provinces on board,21 but Canada would be better without it. Courts, not legislatures, are the Charter’s proper oracles. Effective rights protection requires judicial supremacy.
Failing the outright repeal of what they consider an anti-Charter anomaly, judicial supremacists, including Mendes,22 want the clause to be used rarely, and never to pre-empt judicial review of a law’s constitutionality. Never, in fact, before all courts in the judicial hierarchy have had their say. “The NWC should only be used in response to a final judicial decision by the Supreme Court,” writes Tsvi Kahana in his contribution to the Biro volume.23 On this point, Kahana and other contributors cite a classic 1987 article by Donna Greschner and Ken Norman. “If a legislature could re-enact a statute with an override after a negative lower court decision,” wrote Greschner and Norman, “it would not be showing respect for the judicial process.” The legislature, they continued, should have “a clear working rule that its override power cannot be exercised until there are no longer any judicial fora available in which to argue for a law’s compliance with the Charter”24 – in which case there would be no judicial review to pre-empt.
Greschner and Norman read section 33 as if it said legislatures “may expressly declare” that an “Act or a provision thereof shall operate notwithstanding a final judicial decision that the Act or a provision thereof abrogates or unreasonably limits a provision included in section 2 or sections 7 to 15 of this Charter.” The italicized words do not appear in section 33’s actual text, however, and without them the section allows pre-emptive use of the notwithstanding clause, as the Supreme Court acknowledged in Ford (1988).25 Early in his career, Christopher Manfredi, one of the contributors to the Biro volume, suggested a constitutional amendment to add precisely those italicized words to section 33,26 but nothing came of that. Absent such an amendment, a rule against pre-emptive use of the notwithstanding clause must take the form of an extra-legal norm, a “working rule” as Greschner and Norman put it.
Manfredi continues to oppose using the NWC before a “final judicial decision,” but not because he sees it as “irreconcilably at odds” with the rest of the Charter. To the contrary, he is among those who treat the clause as a valuable part of the Charter. If “political power in its judicial form is limited only by a constitution whose meaning the courts alone define,” he maintains, “then judicial power is no longer itself constrained by constitutional limits.” Constitutional supremacy – Manfredi’s goal – requires judicial review but needs a legislative check on judicial supremacy.27 The notwithstanding clause, improved by a norm against pre-emptive use,28 provides that check.
Greschner and Norman oppose pre-emptive use for a different reason – not to improve an inherently valuable provision but to constrain one that is “at odds” with the Charter. How do we know? Because they signed the 2005 open letter, which, as noted above, views section 33 as hostile to the Charter. Mendes also signed the letter.
But signing the letter meant advising Harper to invoke the clause pre-emptively. In Reference re Same-Sex Marriage (2004),29 decided just weeks before the open letter, the Court confirmed that Parliament could enact same-sex marriage but ducked a referred question about the constitutionality of legislating the opposite-sex requirement. Could Parliament choose between the two options, as Harper maintained, or was full same-sex marriage the only constitutional choice, as the open letter argued? The Court left the question open. This, argued Harper, relieved him of the need to incorporate the NWC into his amendments. He saw no need to invoke a notwithstanding clause before a substantive Supreme Court ruling.30 Harper was taking the very position Greschner and Norman abandoned in signing the open letter. Errol Mendes faced a similar quandary when he advised the use of what he thought should “fall into disuse.”
To understand why the open letter and its signatories were willing to bear the cost of self-contradiction, we need to remind ourselves of just how controversial same-sex marriage was in the early 2000s. In other countries, the combination of heterosexual marriage and civil unions for gays and lesbians – Harper’s preferred option – was then much more common than full same-sex marriage. In 1999, Canada’s House of Commons had voted heavily (216 to 55) in favour of a resolution affirming the traditional heterosexual definition of marriage, with most Liberals, including Prime Minister Chrétien and Paul Martin, in the majority. By 2005 the gap had narrowed and Martin had obviously changed his mind, but his caucus remained divided. Martin's minority government needed every advantage to pass its legislation. Insisting that Harper’s alternative required the politically toxic notwithstanding clause helped; so did having 133 prominent law professors onside. The bill passed (158-133) even though 32 Liberals voted against it.31
Weaponizing section 33 against Harper’s preferred policy worked in 2005 because so many MPs, including Harper, shared the prevailing reluctance to use the NWC. But the era of treating section 33 as an untouchable outlier seems over. Undeterred by warnings that their preferred policies require the clause, more politicians are now ready – even eager32 – to invoke it.
And to invoke it pre-emptively. All but two of the post-2018 uses listed above occurred before any judicial review of the law at issue. The two exceptions responded to the initial judicial decision rather than waiting on judicial appeals, something Manfredi considers “partially pre-emptive.”33 No government waited for a final Supreme Court determination before invoking the clause.
Should they have waited? Consider the pre-emptive use of NWC’s to legislate education workers back to work in Ontario (2022) and Alberta (2025). Those NWCs would not have been needed a few years earlier. In 1987, the Supreme Court ruled that the Charter’s section-2(d) “freedom of association” did not encompass a right to strike.34 It was not until twenty-eight years later, in 2015, that the Court conferred “constitutional benediction” on the right to strike.35 Manfredi argues that even a right so obviously judicially “inserted” – many say “invented” – should not be pre-emptively overridden by the notwithstanding clause.36 But why wait for the Supreme Court, Dave Snow asks, when that Court had already settled the issue in 2015. Waiting months, potentially years, “until the Supreme Court confirms what we all know” is problematic for “time-sensitive issues” such as a “strike by public sector education workers.”37 Ending such strikes, notes Howard Anglin, protects students against further loss of learning and limits harm to parents and the economy.38
Dwight Newman makes the same argument about Saskatchewan’s 2018 invocation of the notwithstanding clause to protect public funding for non-Catholic students in Catholic schools. Premier Wall’s government invoked the NWC right after the trial court struck down that funding rather than waiting for appeals to reach the Supreme Court. The trial decision would have required “thousands of children to move to different schools,” creating “needless anxiety” for families. In these circumstances, argued Newman, waiting “around on an appeal without promising the stability that the notwithstanding clause offers would be to shirk the responsibilities of good governance.”39
In such cases, NWCs arguably work less to override rights textually entrenched in the Charter than to bring other, non-explicit rights into the balance. Here Newman relies on former Saskatchewan Premier Allan Blakeney, a prominent advocate of the notwithstanding clause at the Charter’s founding.40 Blakeney saw section 33 as enabling legislatures to act where rights not explicitly in the Charter, or broader societal interests, may conflict with Charter rights. Questions of economic or social policy, he insisted, involve complex trade-offs better addressed by elected representatives than by judges focused narrowly on individual rights. Those broader rights and interests were left out of the Charter because they don’t belong there, and it is activist overreach for courts to add them. Blakeney would have approved using the notwithstanding clause to protect family and economic stability in the controversies about Catholic school funding and striking teachers. Indeed, he once said that when Saskatchewan’s Conservative government used the notwithstanding clause to “defend back-to-work legislation,” he considered it “a legitimate use of the clause” even though it went “against a union.”41
There’s nothing new about the recent dominance of pre-emptive NWCs. Scholars agree that over the entire course of the Charter’s history about 80 percent of NWCs have been fully pre-emptive, and the rest have responded mainly to lower-court decisions.42 To date, there has been only one NWC response to a Supreme Court decision.43
What is new is the extension of NWC activism beyond Quebec, and that, as the Biro volume shows, has significantly changed the terms of debate. Given the current spread of pre-emptive NWCs, the new concern of the anti-NWC camp is how to deter threatened uses of the clause and to constrain or reverse those already in place.
One way to limit the reach and effect of NWCs is to exploit whatever overlap exists between Charter sections that are subject to the NWC and those that are not. For example, the NWC can be used to limit the freedom of expression secured by section 2(b) of the Charter but not the expression required for citizens to effectively exercise the section-3 right to vote. If a notwithstanding clause prevents judicial invalidation under section 2, a court might nevertheless be able to strike the law down under section 3.44 This strategy depends on increasing the exploitable overlap by expansively interpreting rights impervious to section 33. Three chapters in Biro’s volume focus on this way of circumventing NWCs.45
When overlapping Charter sections cannot come to the rescue, perhaps it is possible to “carve out a residual role for judicial review” of legislation containing a notwithstanding clause.46 If courts cannot strike down a law protected by an NWC, can they nevertheless “declare inconsistency” with relevant Charter rights and freedoms, indicating that they would invalidate the law without a notwithstanding clause and will invalidate it if the NWC is not renewed?47 Several contributors to Biro’s volume say judges can issue such declarations,48 and the Saskatchewan Court of Appeal has recently agreed.49
Nonsense, say other contributors, insisting that section 33 “suspends the application” of certain Charter sections “so that there is no inconsistency with rights and freedoms to declare.”50 They point out that this has been the “received wisdom” or “orthodox interpretation” until just the other day, so to speak. It was certainly how the 133 signatories to the 2005 open letter read section 33. “Rather than ending the Supreme Court’s involvement,” the letter said, Harper’s refusal to pre-emptively invoke the notwithstanding clause “would further embroil the Court” when inevitable litigation reached it. The letter found it “surprising” that “someone who has consistently defended the pre-eminence of Parliament” would not immediately invoke section 33 to end the judicial process.
One wonders how many of the letter’s signatories would take the same position today, when “[i]ncreased uses of section 33 have likely shattered whatever older norm once existed against” invoking the clause.51 No doubt many of them would now support judicial declarations of inconsistency. Some might even endorse Gregory Bordan’s more radical contribution to the Biro volume.
Bordan backs the declaration-of-inconsistency option52 but goes much further. He argues that the notwithstanding clause cannot protect legislation “whose very purpose or object is incompatible with a liberal democratic society” and that directly attacks “the core” of Charter rights and freedoms. Such assaults would amend the Constitution, and it is “outside the power of a legislature to co-opt section 33 for such a purpose.”53 A mere declaration of inconsistency that allows such an abhorrent law to “operate” will not suffice. A law so thoroughly unconstitutional cannot be “shielded through use of the override.”54 Whereas declarations of inconsistency do not affect an NWC’s capacity to keep the inconsistent law in “operation,” this more radical approach would strike down the NWC along with the extreme law.
The Attorney General of Canada makes the same argument in the Supreme Court’s Bill-21 case. His factum argues that “recourse to s.33 that results in an irreparable impairment of a right or freedom would constitute an unauthorized amendment to the Constitution.”55 Freedom of religion, for example, “could disappear if places of worship were declared illegal for a prolonged period” – prolonged, that is, by repeated five-year renewals of the law. Freedom of association could similarly “disappear if all trade unions were declared illegal and prohibited from engaging in any activity for a prolonged period.” And it would take no time at all for NWC-protected laws authorizing “arbitrary executions or slavery” to completely undermine a “free and democratic” society.56
Given the close correspondence between the Attorney General’s factum and Bordan’s chapter, one must wonder why the former doesn’t cite the latter. The factum is obviously aware of Biro’s volume and cites other contributors for other purposes. Why ignore Bordan? The most compelling answer is that the factum wants to take “no position, on any basis whatsoever, on the constitutional validity of the provisions of” Bill 21. It does not want its admittedly “extreme” examples “to suggest, in any way, that the impugned provisions in this case coincide with such scenarios.”57 But Bordan does take a position on Bill 21. For him, the law “attacks the very core of religious freedom” and cannot be saved by a notwithstanding clause. Bordan, as a scholar, feels free to challenge a law of central importance to Quebec’s government. Mark Carney’s Liberal government, for obvious political reasons, wants desperately to avoid challenging Quebec.58 Bordan had to be ignored.
And therein lies a problem. It is easy to agree that the extreme examples in Canada’s factum would signal an end to liberal democracy. But one might wonder whether a government willing to prohibit places of worship or impose slavery would worry about notwithstanding clauses or be deterred by judicial invalidations.59 It is hard to imagine, moreover, that the Supreme Court, faced by Bill 21, not by arbitrary executions, won’t be just as conflicted as the federal government obviously is.
Quebec has always seen the notwithstanding clause as protecting its “distinct society” from the centralizing influence of Charter jurisprudence.60 For example, when the Supreme Court defined freedom of expression in a way that conflicts with Quebec’s language laws the notwithstanding clause came to the rescue. Having good reason to think the Supreme Court would find its Bill-21 ban on religious symbols unconstitutional, Quebec protected the law with an NWC. Other provincial governments, Sigalet argues, now also use NWCs to resist the imposition by federally appointed judges of centralizing rights decisions.61 That helps explain the new wave of NWC invocations beyond Quebec. He sees the federal factum in the Bill 21 case as “goading the Supreme Court to de facto amend the Constitution to set limits on Section 33 that are not found in the text or history of the Charter.”62
Sigalet would not have been surprised when Alberta’s Premier Danielle Smith declared her government “extremely disappointed that the Federal Government would risk national unity and a foundational principle of our constitution by attempting to attack the use of the notwithstanding clause by a sovereign provincial government in this manner.” Her government “does not support the content of Quebec’s Bill 21,” Smith said, but it stands “shoulder to shoulder with Quebec’s constitutional right to invoke the notwithstanding clause as its government sees fit.” She called on Ottawa to immediately withdraw its submission to the Supreme Court.63
Biro notes the argument that “without the NWC … Quebec secession would be all the more probable.”64 One can now say the same thing about Alberta. Why, wonders Howard Anglin, would Ottawa “risk provoking a national unity crisis”?65
Less likely to provoke a crisis is the softer declaration of inconsistency, which leaves an NWC-protected law to “operate.” But this option poses its own challenges. In a time of intense federal-provincial tension, one can easily imagine such declarations serving “as free advertising for provincial parties seeking to position themselves as champions of provincial autonomy and difference.”66 Sigalet doubts that proponents of declarations of inconsistency have considered this counterproductive possibility. Why, he asks, “are so many commentators … unwilling to think about the power dynamics in play.”67
Our high-court judges are more than commentators. When they address constitutional law – the most political of laws – they participate (along with legislative and societal interlocutors) in an ongoing interpretive drama that is never narrowly “legal.” One hopes that in its high-stakes Bill 21 case the Supreme Court pays close attention to the power dynamics in play.
This article is exclusive to The Dorchester Review and will appear in the Spring 2026 print edition, vol. 16, no. 1.
Notes
1. “Open Letter to the Hon. Stephen Harper from Law Professors Regarding Same-Sex Marriage.” Online: https://www.samesexmarriage.ca/advocacy/pino250105.html
2. Caitlin Salvino, “A Tool of the ‘Last Resort’: A Comprehensive Account of the Notwithstanding Clause Political Use from 1982-2021. Journal of Parliamentary and Political Law 16 (2022), 57. See also Guillaume Rousseau and François Côté, “Bill 21 and Bill 96 in Light of a Distinctive Quebec Theory of the Notwithstanding Clause: A Distinct Approach for a Distinct Society and a Distinct Legal Tradition.” Chapter 10 in Peter L. Biro. Ed. The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies. McGill-Queen’s University Press, 2024, 232.
3. Unlikely, to be sure. But see below for how very controversial same-sex marriage remained in Canada in the early aughts.
4. Geoffrey Sigalet and Dave Snow, “Notwithstanding Centralism: The Resurgence of the Notwithstanding Clause and the Conservative Provincial Rights Movement.” Canadian Journal of Political Science 58 (2025), 517.
5. Richard Albert, “The Desuetude of the Notwithstanding Clause.” In Policy Change, Courts, and the Canadian Constitution, ed. Emmett Macfarlane. Toronto: University of Toronto Press, 2018.
6. The School Choice Protection Act, 2018.
7. Ontario’s Bill 28, the Keeping Students in Class Act, targeted striking education assistants, custodians, librarians, and other non-teaching school staff; teachers were not on strike.
8. Alberta’s Bill 2, the Back-to-School Act, targeted striking teachers.
9. Bill 137, the Parents’ Bill of Rights, required parental consent before using a student’s preferred name or gender-related pronouns for children under 16.
10. Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, amended 3 Acts to restrict access to gender-affirming care for minors, require parental consent for gender-related name/pronoun changes in schools, and ban transgender girls from female-only amateur sports.
11. Election Finances Amendment Act (Notwithstanding Clause).
12. Bill 96, An Act respecting French, the official and common language of Québec.
13. Bill 21, an Act respecting the laicity of the State, was enacted in 2019 and renewed in 2024. Bill 94, an Act to Reinforce Laicity, was enacted in 2025.
14. For example, in 2019 New Brunswick invoked the notwithstanding clause in a mandatory vaccination bill. The legislation was tabled but never passed. In late 2025, Quebec tabled Bill 9, including a notwithstanding clause, to further extend the reach of its secularism law. Bill 9 had not yet passed at the time of writing.
15. Conservative leader Pierre Poilievre indicated that he would use the notwithstanding clause to protect tough-on-crime legislative reforms from the courts. See Stuart Thomson, “Pierre Poilievre prepares to embrace the notwithstanding clause – and all its controversy.” National Post, May 1, 2024.
16. Biro, Notwithstanding Clause 3-4.
17. Ibid., 12.
18. English Montreal School Board, et al. v. Attorney General of Quebec, et al.
19. Gregory B. Bordan, “Are There Constitutional Limits on the Use of the Notwithstanding Clause?” Chapter 14 in Biro, Notwithstanding Clause, 309.
20. Errol P. Mendes, “Between Crime and War: Terrorism, Democracy and the Constitution” (2002) 17 National Journal of Constitutional Law, 7.
21. Dwight Newman recounts, and rebuts, this perspective. See his “Key Foundations for the Notwithstanding Clause in Institutional Capacities, Democratic Participatory Values, and Dimensions of Canadian Identities,” chapter 3 in Biro, Notwithstanding Clause, 75-76. The clause was not, says Newman, “some random last-minute addition by a mad drafter.” For a similar rebuttal, see Mary Eberts, “Notwithstanding v. Notwithstanding: Sections 28 and 33 of the Canadian Charter of Rights and Freedoms,” chapter 15 in Biro, 341-42. Section 33, says Eberts, “was not an overnight creation.”
22. Ian Campbell, “’A quiet killing of the Charter’: experts debate the spirit and letter of notwithstanding clause’s pre-emptive use.” The Hill Times, November 20, 2022.
23. Tsvi Kahana, “The Notwithstanding Clause, Bill 96, and Tyranny.” Chapter 13 in Biro, Notwithstanding Clause, 303.
24. Donna Greschner and Ken Norman, “The Courts and Section 33,” Queen’s Law Journal 12 (1987), 192.
25. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 732.
26. Christopher P. Manfredi, “Courts, Legislatures, and the Politics of Judicial Decision-Making (or Perhaps the Notwithstanding Clause Isn’t Such a Bad Thing After All), Chapter 8 in Biro, Notwithstanding Clause, 193.
27. Ibid. 198.
28. Manfredi is also interested in improved accountability mechanisms, as are many of the book’s contributors. See Biro, Notwithstanding Clause, 11-12.
29. 2004 SCC 79; [2004] 3 SCR 698.
30. The open letter emphasized 8 provincial and territorial courts that had found the traditional common-law opposite-sex marriage requirement unconstitutional. But the Supreme Court had said that legislation deserved more judicial deference than court-created common law. In any case, relying on lower court precedents is still pre-emptive in the sense meant by Greschner and Norman. For more detail on this and other aspects of this episode see Rainer Knopff and Andrew Banfield, “‘It’s the Charter Stupid!’: The Charter and the Courts in Federal Partisan Politics.” Supreme Court Law Review 45(2d) (2009).
31. Given the level of controversy, Martin did not impose full party discipline. Cabinet ministers had to vote for the bill, but Liberal backbenchers were allowed a “free vote.” The Act received Royal Assent on July 20, 2005, making Canada the world’s fourth country to adopt full same-sex marriage. In 2016 Harper, now as prime minister, held a free vote on whether to restore traditional marriage. The Commons voted 175-123 against reopening the debate, and Harper declare the issue closed.
32. See Thomson, “Pierre Poilievre.” Bordan, “Are There Constitutional Limits?” 314.
33. Manfredi, “The Politics of Judicial Decision-Making,” 195.
34. Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.
35. Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4, [2015] 1 S.C.R. 245
36. Manfredi, “The Politics of Judicial Decision-Making,” 195.
37. Dave Snow, ‘Pre-Emptive’ use of the notwithstanding clause is nothing new,” The Hub, November 30, 2022. Online: https://thehub.ca/2022/11/30/dave-snow-pre-emptive-use-of-the-notwithstanding-clause-is-nothing-new/.
38. Howard Anglin, “Three cheers for the notwithstanding clause,” The Hub, November 3, 2022. Online: https://thehub.ca/2022/11/03/howard-anglin-three-cheers-for-the-notwithstanding-clause/. See also Geoffrey Sigalet, “Is Alberta justified in using the notwithstanding clause to legislate teachers back to work?” The Hub, October 29, 2025. Online: https://thehub.ca/2025/10/29/is-alberta-justified-in-using-the-notwithstanding-clause-to-legislate-teachers-back-to-work/.
39. Dwight Newman, “Premier Wall’s decision to override a messy court ruling is completely proper.” National Post, May 9, 2017.
40. Newman, “Key Foundations,” 77. See also Rousseau and Côté, “Bill 21 and Bill 96,” 240.
41. Gareth Morley, “Judges: Canada’s New Aristocracy – An interview with Allan Blakeney,” Inroads 18 (Winter/Spring 2006).
42. Snow, ‘Pre-Emptive’ use”; Salvino, “A Tool of the ‘Last Resort’.”
43. Salvino, ibid., 17.
44. This is the background to Ontario (Attorney General) v. Working Families Coalition (Canada) Inc. 2025 SCC 5.
45. Eberts, “Notwithstanding v. Notwithstanding,” chapter 15; Cara Faith Zwibel, “Section 33, the Right to Vote, and Democratic Accountability,” chapter 16; Jamie Cameron, “The Text and the Ballot Box: Section 3, Section 33, and the Right to Cast an Informed Vote,” chapter 17.
46. Eberts, “Notwithstanding v. Notwithstanding,” 382.
47. Or maybe that the law becomes invalid and inoperable immediately upon the expiry of an NWC. See Grégoire Webber, “The Notwithstanding Clause, the Operation of Legislation, and Judicial Review.” Chapter 4 in Biro, Notwithstanding Clause, 103.
48. E.g., Webber chapter 4; Robert Leckey, “Legislative Choices in Using Section 33 and Judicial Scrutiny,” chapter 5; Bordan, “Are There Constitutional Limits?” chapter 14.
49. Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity, 2025 SKCA 74.
50. Maxime St-Hilaire, Xavier Foccroulle Ménard, and Antoine Dutrisac, “Judicial Declarations Notwithstanding the Use of the Notwithstanding Clause? A Response to a (Non-) Rejoinder.” Chapter 6 in Biro, Notwithstanding Clause, 132.
51. Geoffrey Sigalet, Notwithstanding Judicial Review: Legal and Political Reasons Why Courts Cannot Review Laws Invoking Section 33.” Chapter 7 in Biro, Notwithstanding Clause, 169.
52. Bordan, “Are There Constitutional Limits? 316-18.
53. Ibid., 322.
54. Ibid., 327.
55. Factum of the Intervener Attorney General of Canada. Online: https://www.scc-csc.ca/pdf/case-documents/41231/FM520_Intervener_Attorney-General-of-Canada.pdf, para. 32.
56. Ibid., para. 40.
57. Ibid., see paras. 1 and 41.
58. Except, of course, that the factum’s novel approach to section 33 did not sit well with Quebec.
59. See F.L. Morton and Rainer Knopff, The Charter Revolution and the Court Party. Peterborough, Broadview Press (2000), 36. Gerard Kennedy, “Sean Fraser is pushing Canada toward U.S.-style judicial power.” The Line, October 15, 2025. Online: https://www.readtheline.ca/p/gerard-kennedy-sean-fraser-is-pushing.
60. Rousseau and Côté, “Bill 21 and Bill 96,” 238 and passim. Benoît Pelletier, “The Notwithstanding Powers and Provisions: An Asset for Quebec and Canada.” Chapter 9 in Biro, Notwithstanding Clause.
61. Sigalet, “Notwithstanding Judicial Review,” 179. Sigalet and Dave Snow have expanded at length on this point in “Notwithstanding Centralism.” Snow and Mark Harding developed the theme further in “Judging the provinces – Charter interpretation and the erosion of provincial autonomy.” Macdonald-Laurier Institute, January 21, 2026, online: https://macdonaldlaurier.ca/judging-the-provinces-charter-interpretation-and-the-erosion-of-provincial-autonomy-dave-snow-and-mark-harding/. Ted Morton commented on that study in “The Charter is gutting the provinces and the data proves it,” National Post, January 26, 2026.
62. “Sigalet, “Is Alberta justified.”
63. Smith’s Facebook post on the issue: https://www.facebook.com/DanielleSmithAB/posts/the-notwithstanding-clause-is-integral-to-the-canadian-charter-of-rights-and-fre/1628375508375797/. Alberta joined with four other provinces (Quebec, Ontario, Saskatchewan, Nova Scotia) to write a letter to Prime Minister Mark Carney protesting the factum and asking for it to be withdrawn. Jim Bronskill, “Five premiers urge Carney to withdraw court submission on notwithstanding clause.” Canadian Press, October 7, 2025.
64. Biro, Notwithstanding Clause, 8.
65. Howard Anglin, “Liberals push for constitutional change, notwithstanding national unity.” The Hub, September 2025. Online: https://thehub.ca/2025/09/22/howard-anglin-liberals-push-for-constitutional-change-notwithstanding-national-unity/.
66. Sigalet, “Notwithstanding Judicial Review,” 179.
67. Sigalet, “Is Alberta Justified?”