The Notwithstanding Clause in Canada: The First Forty Years

Authors

Tsvi Kahana, Ono Academic College, Israel

Document Type

Article

Abstract

This article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical use of the NWC and another use that had tyrannical characteristics. Worryingly, of the three instances of tyranny, two have taken place in the past four years.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Kahana, Tsvi. "The Notwithstanding Clause in Canada: The First Forty Years." Osgoode Hall Law Journal 60.1 (2023) : 1-71.
DOI: https://doi.org/10.60082/2817-5069.3875
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss1/1

References

1. See Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

2. See City of Toronto et al v Ontario (AG), 2018 ONSC 5151 at paras 81-83. The Ontario Superior Court struck down Ontario legislation that reduced the size of the Toronto City Council on the basis that it limited freedom of expression under section 2(b) of the Charter in a way that was not justified by section 1. The provincial government introduced a bill invoking the NWC, which was ultimately not enacted because the Court of Appeal for Ontario stayed the trial court's decision and later allowed the appeal. See Toronto (City) v Ontario (AG), 2018 ONCA 761; Toronto (City) v Ontario (AG), 2019 ONCA 732, leave to appeal to SCC refused, 2021 SCC 34.

3. See An Act to amend the Election Finances Act, SO 2021, c 31 [Act 5.5]. During the production process of this article, Ontario used the NWC in back-to-work legislation in order to prevent an expected teachers' strike. See Keeping Students in Class Act, 2022, SO 2022, c 19. This legislation provoked much public criticism and it was repealed eleven days after its enactment. See Keeping Students in Class Repeal Act, 2022, SO 2022, c 20. Of course, this use of the NWC and its aftermath merit a separate article.

4. See An Act respecting the laicity of the State, SQ 2019 c 12 [Act 4.3]. See also Part III(A)(6), below. In addition to these uses and this threat to use the NWC, New Brunswick invoked the NWC in 2019 in a mandatory vaccination bill, which has passed a second reading. See Bill 11, An Act Respecting Proof of Immunization, 3rd Sess, 59th Leg, New Brunswick, 2019 (first reading 22 November 2019); Jacques Poitras, "New Brunswick Uses Notwithstanding Clause in 2nd Bid to Pass Vaccination Bill," CBC News (22 November 2019), online: www.cbc.ca/news/canada/new-brunswick/cardy-notwithstanding-clause-mandatory-vaccination-bill-1.5369965 [perma.cc/3QS7-SVVW]. This bill was defeated on its third reading in June of 2020. See New Brunswick, Legislative Assembly, Journal of Assembly, 59-3, No 31 (18 June 2020) at 2-3. In November 2021, the Québec National Assembly adopted in principle another bill that included a notwithstanding declaration. This bill creates more amendments to Québec's French language policy, some of which may be unconstitutional without the use of the NWC. See Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, Québec, 2021; Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 42-2, vol 46, No 9 (4 November 2021) m.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html [perma.cc/W7RE-YSP2]. This bill became law on June 22. See An Act respecting French, the official and common language of Québec, SQ 2022, c 14.

5. See Les Perreaux, "Québec's bill to ban religious symbols sparks condemnation in province and Ottawa," The Globe and Mail (28 March 2019), online: theglobeandmail.com/canada/article-quebec-tables-legislation-on-religious-symbols-ban-includes [perma.cc/L3AK-3DA2?type=image].

6. See Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42-1, No 130A (25 Nov 2019) at 6287, 6303.

7. See e.g. Robert Leckey, "Advocacy Notwithstanding the Notwithstanding Clause" (2019) 28 Const Forum Const 1; Grégoire Webber, Eric Mendelsohn & Robert Leckey, "The faulty received wisdom around the notwithstanding clause" (10 May 2019), online: Policy Options Politiques policyoptions.irpp.org/magazines/may-2019/faulty-wisdom-notwithstandingclause [perma.cc/ZM8E-7EUG]; Leonid Sirota, "Concurring Opinion" (23 May 2019), online: Double Aspect doubleaspect.blog/2019/05/23/concurring-opinion [perma.cc/282A-Y88V].

8. Bill 96, supra note 4. While Bill 96 is outside the period studied in this paper, it seems that Bill 96 may also be deemed as a tyrannical use of the NWC. For analysis see Tsvi Kahana "Is Bill 96 Tyrannical?" in Peter L Biro, ed., provisionally titled, "The Notwithstanding Clause at 40: Canadian Constitutional Democracy at a Crossroads", book manuscript under review.

9. John D Whyte, "ON NOT STANDING FOR NOTWITHSTANDING" (1990) 28 Alta L Rev 347 at 355. For analysis of Whyte's position, see Tsvi Kahana, "Legalism, Anxiety and Legislative Constitutionalism" (2006) 31 Queen's LJ 536. https://doi.org/10.29173/alr1606

10. Roy Romanow, John D Whyte & Howard Leeson, Canada… Notwithstanding: The Making of the Constitution 1976-1982 (Carswell/Methuen, 1984).

11. Ibid at 208.

12. Posing the question assumes that constitutional rights protection is a good thing. The question may be put in terms of cost-benefit. The benefit of rights protection is that many provisions in many statutes were struck down on Charter grounds over the years. The cost is the rights violations created via the NWC. Of course, in order to accurately answer the question, one would need to engage in counterfactual history to compare the current situation of a charter of rights with an NWC to a hypothetical situation with no charter of rights at all. Charter opponents sometimes argue that Canadian legislatures would have brought about the same protection to rights had there been no Charter. According to their argument, the fact that Canadian legislators know that their laws may end up struck down relieves them of constitutional responsibility. Therefore, it is inaccurate to suggest that without a charter of rights, all the laws that ended up being struck down by courts would have remained on the books rather than being reappealed by the legislatures themselves (or never enacted at all). For such an account, see Harry W Arthurs & Brent Arnold, "DOES THE CHARTER MATTER?" (2005) 11 Rev Const Stud 37 at 37, 51-52.

13. I am not suggesting that either question may be answered in full based only on the analysis of NWC uses; rather, I am suggesting that the information concerning NWC uses is necessary to answer the questions.

14. See e.g. Paul C Weiler, "Of Judges and Rights, or Should Canada Have a Constitutional Bill of Rights?" (1980) 60 Dalhousie Rev 205 [Weiler, "Of Judges and Rights"]; Paul C Weiler, "RIGHTS AND JUDGES IN A DEMOCRACY: A NEW CANADIAN VERSION" (1984) 18 U Mich JL Ref 51 [Weiler, "Rights and Judges in a Democracy"]; Brian Slattery, "A Theory of the Charter" (1987) 25 Osgoode Hall LJ 701; Donna Greschner & Ken Norman, "THE COURTS AND SECTION 33" (1987) 12 Queen's LJ 155; Lorraine Eisenstat Weinrib, "Learning to Live with The Override" (1990) 35 McGill LJ 541 [Weinrib, "Learning to Live"]; Whyte, supra note 9; Peter H Russell, "STANDING UP FOR NOTWITHSTANDING" (1991) 29 Alta L Rev 293; Tsvi Kahana, "UNDERSTANDING THE NOTWITHSTANDING MECHANISM" (2002) 52 UTLJ 221 [Kahana, "Understanding"]; Barbara Billingsley, "SECTION 33: THE CHARTER'S SLEEPING GIANT" (2002) 21 Windsor YB Access Just 331; Nicholas Stephanopoulos, "THE CASE FOR THE LEGISLATIVE OVERRIDE" (2005) 10 UCLA J Intl L & Foreign Aff 250; Mark Tushnet, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (Princeton University Press, 2008) at 52-66; Richard Albert, "ADVISORY REVIEW: THE REINCARNATION OF THE NOTWITHSTANDING CLAUSE" (2008) 45 Alta L Rev 1037; Kent Roach, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE, revised ed (Irwin Law, 2016) at 7, 13-14, 37, 67, 76, 274, 317; Guillaume Rousseau & François Côté, "A Distinctive Québec Theory and Practice of the Notwithstanding Clause: When Collective Interests Outweigh Individual Rights" (2017) 47 RGD 343; Janet L Hiebert, "The Notwithstanding Clause: Why Non-use Does not Necessarily Equate with Abiding by Judicial Norms" in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, THE OXFORD HANDBOOK OF THE CANADIAN CONSTITUTION (Oxford University Press, 2017) 695; Dwight Newman, "Canada's Notwithstanding Clause, Dialogue, and Constitutional Identities" in Geoffrey Sigalet, Grégoire Webber & Rosalind Dixon, eds, CONSTITUTIONAL DIALOGUE: RIGHTS, DEMOCRACY, INSTITUTIONS (Cambridge University Press, 2019) 209; Richard Mailey, "The Notwithstanding Clause and the New Populism" (2019) 28 Const Forum Const 9; Leckey, supra note 7; Webber, Mendelsohn & Leckey, supra note 7; Grégoire Webber, "Notwithstanding rights, review, or remedy? On the notwithstanding clause and the operation of legislation" (2021) 71 UTLJ 510; Caitlin Salvino, "A Tool of the 'Last Resort': A Comprehensive Account of the Notwithstanding Clause Political Use from 1982-2021" (2022) 16 JPPL 11.

15. See e.g. Billingsley, supra note 14 at 339-40.

16. See Tsvi Kahana, "The notwithstanding mechanism and public discussion: Lessons from the ignored practice of section 33 of the Charter" (2001) 44 Can Public Administration 255 [Kahana, "Mechanism"]; Rousseau & Côté, supra note 14; Salvino, supra note 14. My article focuses more on the response to the uses of the NWC than on the uses themselves, and, published in 2001, is also rather outdated. Rousseau & Côté's article only discusses uses of the NWC in Québec. https://doi.org/10.1111/j.1754-7121.2001.tb00891.x

17. Kahana, "Understanding," supra note 14.

18. See e.g. Whyte, supra note 9.

19. See e.g. Jeremy Waldron, "The Core of the Case Against Judicial Review" (2006) 115 Yale LJ 1346 https://doi.org/10.2307/20455656

Allan C Hutchinson & Andrew Petter, "PRIVATE RIGHTS/ PUBLIC WRONGS: THE LIBERAL LIE OF THE CHARTER" (1988) 38 UTLJ 278. https://doi.org/10.2307/825787

20. See e.g. Russell, supra note 14.

21. For my own view on what makes an appropriate use of the NWC, see Tsvi Kahana, "What Makes for a Good Use of the Notwithstanding Mechanism?" (2004) 23 SCLR 191.

22. The Appendix to this article is hosted apart from the main text. It may be downloaded as a PDF from the OHLJ Digital Commons website. Tsvi Kahana, "The Notwithstanding Clause in Canada," appendix (2023) 60 OHLJ 1, online (PDF download): https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?filename=0&article=3875&context=ohlj&type=additional [perma.cc/M6F6-KTSF].

23. To avoid confusion and sub classification, I count "uses" of the NWC by looking at the statutes into which notwithstanding declarations were inserted rather than the statutes that did the act of inserting.

24. Land Planning and Development Act, SY 1982, c 22 [Act 5.1]; An Act to amend The Education Act, 1995, ss 2018, c 39 [Act 5.3].

25. An Act to amend the Act to promote the development of agricultural operations, SQ 1986, c 54 [Act 4.1].

26. Act respecting the Constitution Act, 1982, CQLR c L-4.2, ss 1-2 [Act 1.1]; Act respecting private education, CQLR c E-9.1 [Act 3.7]; An Act to amend the Charter of the French language, SQ 1988, c 54 [Act 4.2]; An Act to provide for Settlement of a Certain Labour-Management dispute between the Government of Saskatchewan and the Saskatchewan Government Employees' Union, SS 1984-85-86, c 111 [Act 5.2]; Marriage Act, RSA 2000, c M-5 [Act 5.4].

27. Act 4.3, supra note 4; Act 5.5, supra note 3.

28. Act respecting the Pension Plan of Certain Teachers, CQLR c R-9.1, ss 62, 87, 97, 105 [Act 2.1 or Act "A"]. Section 62 enacted the notwithstanding declaration in Act 2.1. Section 87 of Act 2.1 enacted the notwithstanding declaration in the Act respecting the Government and Public Employees Retirement Plan, CQLR c R-10 [Act 2.2]. Section 97 of Act 2.1 enacted the declaration in the Act respecting the Teachers Pension Plan, CQLR c R-11 [Act 2.3]. Section 105 of Act 2.1 enacted the declaration in the Act respecting the Civil Service Superannuation Plan, CQLR c R-12 [Act 2.4]; Act respecting the Pension Plan of Management Personnel, CQLR c R-12.1, ss 211, 235, 360, 378, 392 [Act 2.5 or Act "D"]. Section 211 enacted the notwithstanding declaration in Act 2.5. Section 235 renewed the declaration in Act 2.1. Section 360 renewed the declaration in Act 2.2. Section 378 renewed the declaration in Act 2.3. Section 392 renewed the declaration in Act 2.4.

29. Act respecting the Conseil supérieur de l'éducation, CQLR c C-60, ss 31-32 [Act 3.1]; Act respecting the Ministère de l'Éducation. du Loisir et du Sport, CQLR c M-15, ss 17-18 [Act 3.2]; The Education Act for Cree, Inuit and Naskapi Native persons, CQLR c I-14, ss 720-1 [Act 3.3]. An act to again amend the Education Act and the Act respecting the Conseil supérieur de l'éducation and to amend the Act respecting the Ministère de l'Éducation, SQ 1986, c 101, ss 10-12 [Act "I"]. Section 10 of Act "I" enacted the notwithstanding declaration in Act 3.1. Section 11 of Act "I" enacted the declaration in Act 3.3. Section 12 of Act "I" enacted the declaration in Act 3.2; Education Act, CQLR c I-13.3, ss 726-7 [Act 3.4 or Act "J"]; Act respecting school elections to elect certain members of the boards of directors of English-language school service centres, CQLR c E-2.3, 283-4 [Act 3.5 or Act "K"]. An Act to amend various legislative provisions of a confessional nature in the education field, SQ 2005, c 20, s 17 [Act 3.6 or Act "O"].

30. An Act to amend various legislative provisions respecting pension plans in the public and parapublic sectors, SQ 1991 c 14 [Act "B"]; An Act to amend the Charter of human rights and freedoms and other legislative provisions, SQ 1996, c 10 [Act "C"]; Act "D," supra note 27; An Act to amend the Act respecting the Pension Plan of Peace Officers in Correctional Services and other legislative provisions, SQ 2004, c 39 [Act "E"]; An Act to amend various pension plans in the public sector, SQ 2009, c 56 [Act "F"]; An Act respecting the implementation of recommendations by the pension committee of certain pension plans in the public sector and amending various legislative provisions, SQ 2014, c 11 [Act "G"]; An Act amending certain Acts establishing public sector pension plans, SQ 2019, c 25 [Act "H"].

31. Act "J," supra note 28; Act "K," supra note 28; An Act respecting certain declarations of exception in Acts relating to education, SQ 1994, c 11 [Act "L"]; An Act respecting certain declarations of exception in Acts relating to education, SQ 1999, c 28 [Act "M"]; An Act to amend various legislative provisions respecting education as regards confessional matters, SQ 2000, c 24 [Act "N"]; Act "O," supra note 28.

32. Act "H," supra note 29.

33. See e.g. Rousseau & Côté, supra note 14.

34. See e.g. Weiler, "Rights and Judges in a Democracy," supra note 14. See also Allan E Blakeney, "The Notwithstanding Clause, the Charter, and Canada's Patriated Constitution: What I Thought We Were Doing" (2010) 19 Const Forum Const 1. https://doi.org/10.21991/C9KD4W

35. See e.g. Russell, supra note 14.

36. See e.g. Lois G Macdonald, "Promoting Social Equality through the Legislative Override" (1994) 4 NJCL 1. See also Blakeney, supra note 33.

37. For example, the Oakes test, which establishes the test for striking down legislation, does not mention the matter of tyranny. Furthermore, Oakes lists several constitutional concepts and values for Canada, but does not directly mention the need to prevent the tyranny of the majority. See R v Oakes, [1986] 1 SCR 103 at paras 63-71 [Oakes].

38. See Tamás Nyirkos, The Tyranny of the Majority: History, Concepts, and Challenges (Routledge, 2018) at 4. https://doi.org/10.4324/9781351211420

39. Whyte, supra note 9 at 355.

40. See James Madison, "Federalist No 51" in The Federalist Papers (1788) 333.

41. See Adam Shortt, "The Relation Between the Legislative and Executive Branches of the Canadian Government" (1913) 7 Am Pol Sci Rev 181 at 194 https://doi.org/10.2307/1944893; Bruce Ackerman, We the People: Foundations, vol 1 (Harvard University Press, 1991) at 243-46.

42. See e.g. Donald J Savoie, Court Government and the Collapse of Accountability (University of Toronto Press, 2008) at 48-49

Donald J Savoie, La démocratie au Canada : l'effritement de nos institutions (McGill-Queen's University Press, 2019) at 202, 226. https://doi.org/10.1515/9780228000426

43. See Ackerman, supra note 40 at 246-48; Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990).

44. See George J Stigler, "The Theory of Economic Regulation" (1971) 2 Bell J Economics & Management Science 3. See also Ackerman, supra note 40 at 245-46. https://doi.org/10.2307/3003160

45. See Martin Gilens & Benjamin I Page, "Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens" (2014) 12 Perspectives on Politics 564 at 575. https://doi.org/10.1017/S1537592714001595

46. See Ackerman, supra note 40 at 246-47.

47. See e.g. Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and Morals (Rowman & Allanheld, 1985) at 81; Richard Stacey, "The Magnetism of Moral Reasoning and the Principle of Proportionality in Comparative Constitutional Adjudication" (2019) 67 Am J Comp L 435 at 443-44. In relation to Aboriginal rights, see Patrick Macklem, "Distributing Sovereignty: Indian Nations and Equality of Peoples" (1993) 45 Stan L Rev 1311 at 1321. For a view opposing the distinction between a core and periphery of rights, see Grégoire CN Webber, "Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship" (2010) 23 Can JL & Jur 179 at 200-202.

48. See David M Beatty, Constitutional Law in Theory and Practice (University of Toronto Press, 1995) at 149 (distinguishing between "major restrictions" and "superficial" and "trivial" restrictions).

49. See e.g. Michael S Moore, Placing Blame: A Theory of Criminal Law (Oxford University Press, 1997) at 98-101. See also Kent Roach, "THE PRIMACY OF LIBERTY AND PROPORTIONALITY, NOT HUMAN DIGNITY, WHEN SUBJECTING CRIMINAL LAW TO CONSTITUTIONAL CONTROL" (2011) 44 Israel LR 91 at 92, 106-107.

50. See e.g. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford University Press, 1995); John Borrows, UNEXTINGUISHED: RIGHTS AND THE INDIAN ACT (2016) 67 UNBLJ 3 at 11 [Borrows, Unextinguished]; Patrick Macklem, Indigenous Difference and the Constitution of Canada (University of Toronto Press, 2001) at 270-71; Hugo Cyr, "Functional and Existential Authorities" (2015) 28 Can JL & Jur 265 at 281-82.

51. See Kymlicka, supra note 49.

52. See e.g. Ackerman, supra note 40 at 6-7 (Ackerman's dualist democracy theory); Jeremy Webber, "Democratic Decision Making as the First Principle of Contemporary Constitutionalism" in Richard W Bauman & Tsvi Kahana, eds, The Least Examined Branch: The Role of Legislatures in the Constitutional State (Cambridge University Press, 2006) 411 at 411, 418. https://doi.org/10.1017/CBO9780511511035.022

53. See e.g. James Madison, "Federalist No 47" in The Federalist Papers (1788) 308; Alexander Hamilton, "Federalist No 78" in The Federalist Papers (1788) 505.

54. John Hart Ely, DEMOCRACY and DISTRUST: A Theory of Judicial Review (Harvard University Press, 1980). For an application of this theory to Canada, see Patrick J Monahan, "JUDICIAL REVIEW AND DEMOCRACY: A THEORY OF JUDICIAL REVIEW" (1987) 21 UBC L Rev 87. Of course, the more a specific constitutional theory celebrates a legislature's inability to represent minorities, the less likely this theory will allow for the existence of an NWC.

55. See Lorraine E Weinrib "THE SUPREME COURT OF CANADA IN THE AGE OF RIGHTS: CONSTITUTIONAL DEMOCRACY, THE RULE OF LAW AND FUNDAMENTAL RIGHTS UNDER CANADA'S CONSTITUTION" (2001) 80 Can Bar Rev 699; Lorraine Eisenstat Weinrib, "The Activist Constitution" in Paul Howe & Peter H Russell, eds, Judicial Power and Canadian Democracy (McGill-Queen's University Press, 2001) 80. https://doi.org/10.1515/9780773568891-009

56. Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978) at 234-37.

57. See Ely, supra note 53 at 153.

58. See e.g. Richard Moon, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION (University of Toronto Press, 2000) at 14-19.

59. See e.g. Mark Walters, "British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia" (1992) 17 Queen's LJ 350 at 350-52, 409-13; John Borrows, "UNCERTAIN CITIZENS: ABORIGINAL PEOPLES AND THE SUPREME COURT" (2001) 80 Can Bar Rev 15 at 35-40; Jean Leclair, "Federal Constitutionalism and Aboriginal Difference" (2006) 31 Queen's LJ 521; John Borrows, Canada's Indigenous Constitution (University of Toronto Press, 2010), ch 7; Borrows, Unextinguished, supra note 49 at 11; Patrick Macklem & Douglas Sanderson, "Introduction: Recognition and Reconciliation in Indigenous-Settler Societies" in Patrick Macklem & Douglas Sanderson, eds, From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2016). Of course, section 35 of the Charter, which entrenches Aboriginal rights, is not subject to section 33. See Charter, supra note 1, s 33(1). However, the notion that constitutional analysis and evaluation is interested in the rights of groups and minorities clearly emerges from the literature on Aboriginal rights in Canada.

60. See e.g. Robert M Cover, "The Origins of Judicial Activism in the Protection of Minorities" (1982) 91 Yale LJ 1287 at 1304. See also Paul Brest, "THE SUPREME COURT 1975 TERM-FOREWORD: IN DEFENSE OF THE ANTIDISCRIMINATION PRINCIPLE" (1976) 90 Harv L Rev 1 at 5-6; Ruth Colker, "ANTI-SUBORDINATION ABOVE ALL: SEX, RACE, AND EQUAL PROTECTION" (1986) 61 NYUL Rev 1003.

61. See US v Carolene Products Co, 304 US 144, 153 (1938) (for an example of the use of the phrase "discrete and insular").

62. See Ely, supra note 53, ch 5. Similarly, David M Beatty talks of "those who…have been ignored by their Governments." Beatty, supra note 47 at 160-61.

63. See supra note 14 at 80-82.

64. See Richard H Fallon Jr, Implementing the Constitution (Harvard University Press, 2001).

65. See e.g. Hugo Cyr & Monica Popescu, "The Supreme Court of Canada" in András Jakab, Arthur Dyevre & Giulio Itzcovich, eds, Comparative Constitutional Reasoning (Cambridge University Press, 2017) 154 at 160-61 (explaining how the adoption of the Charter changed constitutional discourse in Canada). https://doi.org/10.1017/9781316084281.007

66. See Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 19-21. Several constitutions acknowledge the protection on the core of the right. See Maja Brkan, "The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core" (2018) 14 EuConst 332. https://doi.org/10.1017/S1574019618000159

67. See e.g. Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at para 88(9)(D) [Law v Canada] (whereby "[t]he nature and scope of the interest affected by the impugned law" impacts the section 15 analysis).

68. See e.g. R v Butler, [1992] 1 SCR 452 at 485 (where the Court rules that the stronger the inference of a risk of harm caused by an expression, the higher the likelihood that a limit on this expression will be upheld).

69. See e.g. Law v Canada, supra note 66. In the context of discrimination analysis, "the more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s 15(1)." Ibid at para 88(9)(D).

70. "The ameliorative purpose or effects of the impugned law" affects discrimination analysis. Ibid.

71. See e.g. R v Kapp, 2008 SCC 41 at para 59 ("The disadvantage of aboriginal people is indisputable").

72. While I consider silencing political opposition a tyrannical motivation, the same is not true for the motivation of preventing judicial review and thus arguably silencing the courts. Some theories of the NWC explicitly allow for pre-emptive use of the mechanism when the legislature is certain that law it creates via the NWC is constitutional. See e.g. Slattery, supra note 14.

73. By "notwithstanding legislation," I refer to legislation invoking the NWC. I refer to the declaration stating that the act shall operate notwithstanding certain provisions of the Charter as a "notwithstanding declaration."

74. Because of the psychological and expressive effects of legislation, it is difficult to imagine legislation that is motivated by the desire to target minorities that will not actually have the impact of targeting minorities. Even if the subject matter of the law is trivial, the fact that the minority members know that they are excluded or burdened-even trivially-would result in targeting. Nevertheless, it is possible to think of such an example when the majority hides its motivation from the minority. Suppose, for example, that the majority legislates an exemption from income tax for a certain minority. That policy in itself seems benign. However, if the motivation behind this legislation is contempt, or the view that the minority is not worthy of participating in the funding of government, I deem this legislation tyrannical based on motivation alone, even if the minority is happy with the exception.

75. See Cass R Sunstein, "On the Expressive Function of Law" (1996) 5 E Eur Const Rev 66 https://doi.org/10.2307/3312647

Elizabeth S Anderson & Richard H Pildes, "Expressive Theories Of Law: A General Restatement" (2000) 148 U Pa L Rev 1503. While the literature discusses the expressive function of law in the context of enforceable law, the rationale behind this expressive function does not depend on enforceability. This rationale is based on the message sent by the institution creating the laws. But institutions are made of people. When the legislature does something as important as legislating, that very action sends a message, even if, eventually, the message is dimmed or outweighed by the striking down of the law in court. Indeed, Richard H McAdams explains that, for expressive purposes, it is important that a legislature repeals an unconstitutional law after it was struck down by a court even though that act is not enforceable. See Richard H McAdams, The Expressive Powers of Law: Theories and Limits (Harvard University Press, 2015) at 150-51. In other words, an unconstitutional law does have expressive impact as long as it is in the books. https://doi.org/10.2307/3312748

76. The Alberta anti-same-sex marriage legislation is a case in point. As I show below, this legislation was based on homophobic sentiment. However, it may be that legislators allow themselves to vote for a tyrannical act because they know it will not be enforceable. See Part III(B)(4), below.

77. While in terms of impact on rights, a notwithstanding act that was not brought into force has less impact than a notwithstanding act that is unconstitutional, in terms of motivation analysis, a notwithstanding act that was not brought into force is located on a middle point between ordinary notwithstanding acts, which come into force and remain in force, and notwithstanding acts that are not constitutional, which come into force but may end up being struck down. On the one hand, if legislators know that the act on which they are voting is not going to be brought into force, they may allow for more tyrannical reasons than when they know the act will certainly be brought into force, similar to when they enact a notwithstanding act that they know is ultimately unconstitutional. On the other hand, because they know that the act may eventually be brought into force, even if only at a future point (unlike an act that is ultimately unconstitutional, if struck down by the courts), they may be more cautious and not allow themselves tyrannical reasons.

78. For analysis, see Greschner & Norman, supra note 14.

79. See Part IV(E), below.

80. See Act 1.1, supra note 25. For an analysis of this Act, see Weinrib, "Learning to Live," supra note 14.

81. See Christopher P Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (University of Oklahoma Press: Norman and London, 1993) at 200; Weinrib, "Learning to Live," supra note 14 at 559-61; Rousseau & Côté, supra note 14 at 348.

82. Ford v Québec (AG), [1988] 2 SCR 712 at paras 35-36 [Ford]. For analysis, see Weinrib, "Learning to Live," supra note 14 at 559-63.

83. See Act 1.1, supra note 25.

84. See Manfredi, supra note 80.

85. See Act 2.1, supra note 27; Act 2.2, supra note 27; Act 2.3, supra note 27; Act 2.4, supra note 27; Act 2.5, supra note 27.

86. William J Smith & Helen M Donahue, The Historical Roots of Québec Education (Office of Research on Educational Policy, McGill University, 1999) at 7, 19-23.

87. See Michael D Behiels, Prelude to Québec's Quiet Revolution: Liberalism versus Neo-nationalism, 1945-1960 (McGill-Queen's University Press, 1985).

88. There were 10,839 teachers from religious orders in 1960, but only 8,209 by 1969. See Andrée Dufour, Histoire de l'éducation au Québec (Boréal, 1997) at 102.

89. For an account of Québec's education system prior to 1963, see generally Royal Commission of Inquiry on Education in the Province of Québec, Report of the Royal Commission of Inquiry on Education in the Province of Québec: The Structure of the Educational System at the Province, vol 1 (Queen's Printer, 1963) at 1-21 [Report, vol 1]; Roger Magnuson, A Brief History of Québec Education: From New France to Parti Québécois (Harvest House, 1980) at 44-51; Ministère de l'Éducation, Conseil supérieur de l'éducation & Ministère de l'Enseignement supérieur et de la Science, Une histoire de l'éducation au Québec (Gouvernement du Québec, 1989) at 51.

90. Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 33-1, Vol 29 No 46 (16 June 1986) at 2872-2882 (M Paul Gobeil) [Québec Hansard (16 June 1986)].

91. See Act respecting Pension coverage for certain teachers, RSQ c P-32.1. This formula appeared not to be very generous, as it apparently cost the government only about 10 per cent of the cost of a plan that would allow full compensation for all years of service ($34 million as opposed to $300 million). See Québec Hansard (16 June 1986), supra note 89 at 2872.

92. Act 2.1, supra note 27. The formula in Act 2.1 was more generous than the previous formula, but the plan still cost the government only about half of what it would have cost to completely reinstate the "buyback" option ($153 million as opposed to $300 million). See Québec Hansard (19 June 1986), supra note 89 at 2873.

93. Ibid at 2873.

94. Two of the other government pension plans, both of which stopped admitting new members in 1973, also contained provisions that allowed women to receive their pensions at an earlier age than men, and the NWC was applied to these as well. See Act 2.3, supra note 27, s 32; Act 2.4, supra note 27, s 2.

95. Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 42-1, vol 45 No 75 (30 October 2019) at 5024 (M Christian Dubé) [Québec Hansard (30 October 2019)].

96. See Act 2.3 supra note 27, ss 23-23.1; Act 2.4 supra note 27, s 99.7. Following a reorganization of public pension plans in 1973, all new public servants (including teachers) joined one of two new pension plans-either the Government and Public Employees Retirement Plan (Act 2.2) or the Pension Plan of Management Personnel (Act 2.5)- neither of which differentiate between men and women. See Act 2.2 supra note 27; Act 2.5 supra note 27.

97. Act "B," supra note 29; Act "C," supra note 29; Act "D," supra note 27; Act "E," supra note 29; Act "F," supra note 29; Act "G," supra note 29; Act "H," supra note 29.

98. Act "H" was enacted in 2019 and renewed the notwithstanding declarations of Acts 2.1-2.5. See Act "H," supra note 29, ss 1-4, 9. According to Section 33 (3) of the Charter such declaration expires five years after it comes into force. See Charter, supra note 1. The current expiry date is 1 January 2025. See Act "H," supra note 29, s 10.

99. Québec Hansard (30 October 2019), supra note 94 at 5024.

100. See Québec Hansard (16 June 1986), supra note 89 at 2875-79. https://doi.org/10.1080/13501678608577553

101. Québec, National Assembly, Committee on the Budget and Administration, Journal des débats de la Commission permanente du budget et de l'administration, 34-1, vol 31 No 69 (8 May 1991) at CBA-2976 (Mr Sanschargin).

102. See Québec, National Assembly, Committee on Public Finance, Journal des débats de la Commission permanente des finances publiques, 39-1, vol 41 No 46 (19 November 2009) at 4 (Mme Gagnon-Tremblay).

103. Québec Hansard (19 June 1986), supra note 89 at 2873.

104. Ibid at 2879 (M Claude Ryan).

105. Andrews v Law Society of British Columbia, [1989] 1 SCR 143 [Andrews].

106. According to Andrews, only grounds explicitly set in section 15 or analogous to them are forbidden grounds of discrimination. See ibid at 180-81. In Delisle v Canada (Deputy AG), the Court ruled that one's occupation is not an analogous ground and therefore is not a forbidden ground of discrimination under section 15. See [1999] 2 SCR 989. The specific type and status of teaching-such as current versus former teacher-is a fortiori not a ground.

107. See e.g. Law v Canada, supra note 66 (upholding age distinctions based on different needs of people of different ages). In addition, one must remember that courts tend to be deferential when it comes to pension plans.

108. In Act 3.1, the NWC applied to provisions guaranteeing positions for Catholics and Protestants on the Superior Council of Education, a body that advised the Minister of Education. Act 3.2 used the NWC to protect the religious structure within the Ministry of Education, which included Catholic and Protestant Deputy Ministers of Education. Act 3.3 contained a right to Catholic or Protestant instruction in Cree, Inuit, and Naskapi schools. Act 3.4, the main education legislation, contained provisions requiring school boards to administer their schools in conformity with the regulations approved by the Catholic and Protestant confessional committees established in Act 3.1. It also allowed schools to be designated as Catholic or Protestant and permitted Catholic or Protestant religious instruction. Act 3.5 addressed the election and composition of Catholic and Protestant schoolboards. Act 3.7 dealt with Catholic and Protestant instruction in private educational institutions. Act 3.6 used the NWC to shelter final transitional provisions, which removed religious structures from the education system but allowed schools to continue offering Catholic or Protestant religious instruction until July 2008, when a new non-denominational course on ethics and religious culture was introduced. See Act 3.1, supra note 28; Act 3.2, supra note 28; Act 3.3, supra note 28; Act 3.4, supra note 28; Act 3.5, supra note 28; Act 3.6, supra note 28; Act 3.7, supra note 25.

109. Royal Commission of Inquiry on Education in the Province of Québec, Report, vol 1, supra note 88; Royal Commission of Inquiry on Education in the Province of Québec, Report of the Royal Commission of Inquiry on Education in the Province of Québec: The Structure of the Educational System at the Province, vol 4 (Queen's Printer, 1966) at 165-76, 191-95.

110. Report of the Royal Commission of Inquiry on Education in the Province of Quebec Report of the Royal Commission of Inquiry on Education in the Province of Quebec Royal Commission of Inquiry on Education in the Province of Québec, Report of the Royal Commission of Inquiry on Education in the Province of Québec: The Structure of the Educational System at the Province, vol 4 (Queen's Printer, 1966) at 165-76, 191-95. Report of the Royal Commission of Inquiry on Education in the Province of Quebec Report of the Royal Commission of Inquiry on Education in the Province of Quebec.

111. See Reference re Education Act (Que), [1993] 2 SCR 511; Hirsch v Montreal Protestant School Board of School Commissioners, [1928] 1 DLR 1041; AG (Que) v Greater Hull School Board, [1984] 2 SCR 575; Greater Montreal Protestant School Board v Québec (AG), [1989] 1 SCR 377.

112. Québec Hansard (9 December 1986), supra note 108 at 5028-29.

113. Subsection 93(2) extends the rights that were enjoyed by Catholic (separate) schools in Ontario in 1867 to dissentient Protestant and Catholic schools in Québec. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93(2), reprinted in RSC 1985, Appendix II, No 5.

114. See Reference re Education Act (Que), supra note 110.

115. They were de jure non-denominational, but in most cases were de facto denominational because they were staffed and managed by the dominant religious group. See William J Smith, "Linguistic School Boards in Québec - A Reform Whose Time Has Come: Reference Re Education Act of Québec (Bill 107)" (1994) 39 McGill LJ 200.

116. Ibid at 203.

117. Ibid at 205-206.

118. Theoretically, it was vulnerable to a challenge under the implied bill of rights, though, generally speaking, the implied bill of rights cases represent more blunt violations of rights. As far as I was able to find out, the Québec school system was not challenged based on the implied bill of rights. On the implied bill of rights, see generally Peter W Hogg, Constitutional Law of Canada, loose-leaf ed, vol 1 (Thomson Carswell, 2007) at 34.2(c), 34-11.

119. Québec Hansard (9 December 1986), supra note 108 at 5027-30.

120. The omnibus use, Act 1.1, passed on June 23, 1982. While it applied retroactively, the Supreme Court held in Ford that it may only apply prospectively, that is, from the day of its enactment. See Act 1.1, supra note 25, s 7; Ford, supra note 81 at para 83(1). According to s. 33(3), the notwithstanding declaration expires 5 years after its enactment. See Charter, supra note 1.

121. See See Counseil supérieur de l'éducation Québec, Restructuring The School System: An Act respecting Public Elementary and Secondary Education (Bill 40) (Counseil supérieur de l'éducation Québec, August 2014); Clermont Barnabé & Pierre Toussaint, L'administration de l'éducation: une perspective historique, 2nd (Presses de l'Université du Québec, 2018) at 68.

122. Loi sur l'enseignement primaire et secondaire public, CQLR c E-8.1.

123. See Québec Assn of Protestant School Boards c Québec (Procureur general), [1985] CS 872.

124. Ibid at paras 113-28.

125. Ibid at paras 54-55. For commentary on the decision, see Smith, supra note 114 at 209.

126. Act "J," supra note 28.

127. Ibid, ss 111, 122.

128. Ibid, ss 125-127.

129. Reference re Education Act (Que), supra note 110.

130. Constitution Act, 1867, supra note 112111, s 93A.

131. Act "O," supra note 28.

132. Ibid, ss 1-4, 7, 12.

133. Reference re Bill 30, An Act to Amend the Education Act (Ont), [1987] 1 SCR 1148.

134. Ibid. In fact, this Reference bolstered section 93's force beyond the finding that section 15 could not negate it and ruled that the Québec Legislature may extend the discrimination allowed by section 93. The reference was prompted by the Ontario government's decision to fully fund Catholic high schools in Ontario. Previously, Ontario's Catholic schools only received public funding for students until they reached grade 10; the new policy was to fund students all the way to grade 12. Arguably, even if section 15 cannot negate section 93, it can be used to interpret section 93 such that it is not extended beyond the discrimination at Confederation. However, the judges interpreted section 93 as a general grant of legislative authority in relation to denominational education that includes the authority to legislate rights and privileges beyond those granted by law in 1867. On the funding of schools, see William J Smith, "Linguistic School Boards in Quebec-A Reform Whose Time Has Come: Reference Re Education Act of Québec (Bill 107)," Case Comment, (1994) 39 McGill LJ 200 at 217-218.

135. Act 4.1, supra note 24.

136. Québec, National Assembly, Committee on Agriculture, Fisheries and Food, Journal des débats de la Commission de l'agriculture, des pêcheries et de l'alimentation, 33-1, vol 29 No 11 (12 June 1986) at 489 (M Michel Pagé).

137. SQ 1987, c 86.

138. Ibid, s 156.

139. Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 33-1, vol 29 No 36 (2 June 1986) at 1990 (M Michel Pagé). I thank Mr. Sébastien Senécal for the translation.

140. Ibid at 1987-88, 1990 (M Michel Pagé).

141. See Law v Canada, supra note 66.

142. See Gosselin v Québec (AG), 2002 SCC 84 [Gosselin v Québec].

143. See McKinney v University of Guelph, [1990] 3 SCR 229.

144. Act 4.1, supra note 24, ss 3, 5.

145. Act 4.2, supra note 25.

146. Ford, supra note 81.

147. See Manfredi, supra note 80 at 202.

148. Act 4.2, supra note 25, s 10.

149. See Patrick J Monahan, Meech Lake: The Inside Story (University of Toronto Press, 1991) at 164-66; Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Douglas & McIntyre, 1990) at 200.

150. See Monahan, supra note 148 at 164-68.

151. Ibid at 297-99.

152. See Cohen, supra note 148 at 216.

153. See Peter H Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (University of Toronto Press, 1993) at 148-54.

154. Monahan, supra note 148 at 3-4.

155. See Mary Dawson, "FROM THE BACKROOM TO THE FRONT LINE: MAKING CONSTITUTIONAL HISTORY OR ENCOUNTERS WITH THE CONSTITUTION: PATRIATION, MEECH LAKE, AND CHARLOTTETOWN" (2012) 57 McGill LJ 955 at 985. See also Monahan, supra note 148 at 164-66; Cohen, supra note 148 at 197-200; Manfredi, supra note 80 at 186-87.

156. See Ballantyne, Davidson, McIntyre v Canada, UNCCPR, 47th Sess, UN Doc CCPR/C/47/D/359/1989 (1993). This document is a communication of the opinions submitted by John Ballantyne, Elizabeth Davidson, and Gordon McInytre and was adopted on 31 March 1993.

157. An Act to amend the Charter of the French language, SQ 1993, c 40, ss 18, 22 (which amended, respectively, sections 58 and 68 of the Charter of the French Language, RSQ c C-11). The bill's explanatory notes stated that it sought to amend the legislation "in order to bring some of its provisions…into harmony with the decisions rendered by various authorities." See Bill 86, An Act to Amend the Charter of the French Language, 2nd Sess, 34th Leg, Québec, 1993. The non-renewal of the notwithstanding declaration was not mentioned in the explanatory notes.

158. The extent of the acceptance in Québec of the sign policy dictated by the Supreme Court can be seen from the following episode. In La Procureure general du Enterprises WFH ltee, , it was held that the Court's approval of the predominantly French requirement in Ford was no longer binding since, ten years after Ford, the Government had an obligation to produce evidence that the French language remained vulnerable in Québec. See [1999] RJQ 2794 (CQ crim & pén). Since no evidence was presented, the court struck down section 58. The Québec Minister of Justice announced that the province would appeal, but the option of using the NWC was not mentioned. See Campbell Clark, "Judge Strikes Down Key Part of Language Law," National Post (21 October 1999) A1; Ingrid Peritz, "Signs Rules Struck Down in Québec," The Globe and Mail (21 October 1999) A1. The decision was reversed on appeal. See Québec (Procureur général) c Entreprises WFH ltée, [2000] RJQ 1222 (Que SC).

159. See Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 33-2, vol 30 No 83 (20 December 1988) at 4402-11.

160. Ibid at 4374 (Guy Rivard).

161. See Ford, supra note 81 at para 73.

162. Russell, supra note 14 at 305. https://doi.org/10.54648/ERPL2006016

163. Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 33-2, vol 30 No 82 (19 December 1988) at 4360-61 (M Guy Chevrette), 4375-78 (M Jean-Pierre Charbonneau). See also Rousseau & Côté, supra note 14 at 396.

164. See Ford, supra note 81 at para 59.

165. See Edward McWhinney, Canada and the Constitution 1979-1982: patriation and the charter of rights (University of Toronto Press, 1982) at 24-27. 166. Act 4.3, supra note 4.

167. Ibid, s 2.

168. Ibid, s 6.

169. Ibid, s 8.

170. An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, SQ 2017, c 19.

171. Kevin Dougherty, "Doug Ford's use of notwithstanding clause music to the ears of Québec's Francois Legault," iPolitics (12 September 2018), online: ipolitics.ca/2018/09/12/doug-fords-use-of-notwithstanding-clause-music-to-the-ears-of-quebecs-francois-legault [perma.cc/FAL9-PCYL].

172. See National Council of Canadian Muslims (NCCM) v Attorney General of Québec, 2017 QCCS 5459; National Council of Canadian Muslims (NCCM) v Attorney General of Québec, 2018 QCCS 2766 [National Council of Canadian Muslims, 2018].

173. See Act 4.3, supra note 4, ss 8, 24.

174. See Hak c Procureure générale du Québec, 2019 QCCA 2145 at paras 4, 16, 101-102, 156 [Hak, 2019].

175. Hak c Procureur général du Québec, 2021 QCCS 1466 at para 4 [Hak, 2021].

176. Ibid at paras 884, 1006.

177. Ibid at paras 1128-31, 1137-40.

178. Québec, National Assembly, Journal des débats (Hansard) of the National Assembly, 42-1, vol 45 No 46 (29 May 2019).

179. Ibid.

180. Jonathan Montpetit, "New court challenge brought against Quebec's secularism law," CBC News (27 September 2019), online: cbc.ca/news/canada/montreal/new-court-challengebrought-against-Québec-s-secularism-law-1.5299183 [perma.cc/9DBG-2DE8].

181. See Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions, 1st Sess, 39th Leg, Québec, 2010 [Bill 94]

Bill 62, An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, 1st Sess, 41st Leg, Québec, 2015 [Bill 62].

182. For the Parti Québécois' bill, see Bill 60, Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, 1st Sess, 40th Leg, Québec, 2013. For the Coalition Avenir Québec's bill, which eventually became law, see Act 4.3, supra note 4.

183. Benjamin Shingler, "Quebec will make immigrants pass 'values' test," CBC News (30 October 2019), online: cbc.ca/news/%20uebec/montreal/%20uebec-values-test-immigration-1.5340652 [perma.cc/8ANJ-TBQV].

184. Kevin Gould, "Francois Legault says crucifix isn't religious symbol, considering grandfather clause for ban on wearing symbols," CTV News (11 October 2018), online: bit.ly/3b45qpX [perma.cc/L3V6-RJR4].

185. John Rawls counts "[p]owers and prerogatives of offices and positions of authority and responsibility" as one of the "primary goods" which people "need as free and equal persons living a complete life." See Justice as Fairness: A Restatement, ed by Erin Kelly (Harvard University Press, 2001) at 58.

186. See "2011 National Household Survey: Data tables" (8 May 2013), online: Statistics Canada www12.statcan.gc.ca/nhs-enm/2011/dp-pd/dt-td/Rp-eng.cfm?TABID=2&LANG=E&A=R&APATH=3&DETAIL=0&DIM=0&FL=A&FREE=0&GC=01&GL=-1&GID=1118296&GK=1&GRP=1&O=D&PID=105399&PRID=0&PTYPE=105277&S=0&SHOWALL=0&SUB=0&Temporal=2013&THEME=95&VID=0&VNAMEE=&VNAMEF=&D1=0&D2=0&D3=0&D4=0&D5=0&D6=0 [perma.cc/FV5Z-ZZ3N].

187. See Dougherty, supra note 170; National Council of Canadian Muslims, 2018, supra note 171. See also the accompanying text.

188. National Council of Canadian Muslims, 2018, supra note171 at para 81.

189. Hak, 2019, supra note 173 at para 95.

190. Hak, 2021, supra note 174 at paras 781-800.

191. Charter, supra note 1, s 28.

192. Ibid. The court of appeal agreed to hear other arguments against the constitutionality of the law, whereby the law violates section 28 of the Charter and Canada's unwritten constitutional principles. According to the majority, the violation of section 28 was not clear enough to grant a stay. Hak, 2019, supra note 173 at paras 27, 33, 39-52, 94, 130-34, 147.

193. Hak, 2021, supra note 174 at paras 801-80.

194. Act 5.1, supra note 23.

195. Yukon, Legislative Assembly, Hansard, 25-2, No 16, (29 November 1982) (The Honourable Donald Taylor); Yukon, Legislative Assembly, Hansard, 25-2, No 18 (1 December 1982) (The Honourable Donald Taylor) at 342.

196. Yukon, Legislative Assembly, Hansard, 25-2, No 18 (1 December 1982) (The Honourable Howard Tracey) at 339.

197. Yukon, Legislative Assembly, Hansard, 25-2, No 19 (2 December 1982) (The Honourable Donald Taylor).

198. Hogg, supra note 117 at 55.7, 55-18. https://doi.org/10.1016/j.radi.2011.11.008

199. Act 5.1, supra note 23; Charter, supra note 1, s 32(2).

200. Act 5.1, supra note 23. See Table 5 below.

201. Greschner & Norman, supra note 14, at 155.

202. Ibid at 158-59.

203. Retail, Wholesale and Department Store Union, Local 544 v Saskatchewan, [1985] 19 DLR (4th) 609 (Sask CA).

204. Act 5.1, supra note 23.

205. Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, Rothstein & Wagner JJ dissenting.

206. Arguably, the impact of the back to work law was severe because it did include a prohibition and, given the SCC's recent jurisprudence, we now understand that the rights to strike may touch the core of the right to freedom of association. See Saskatchewan Federation of Labour v Saskatchewan, supra note 204 at para 54 (Abella JJ). We do not need to decide between moderate and severe because what is important for our purposes is that Act 5.2's impact on rights was not exceptionally severe.

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

208. Saskatchewan Federation of Labour v Saskatchewan, supra note 204.

209. See Paragraph III(3)(i)(e), above.

210. The Saskatchewan Act, 1905, 4-5 Edw VII, c 42, s 17 (applying section 93 to Saskatchewan with the necessary modifications).

211. Good Spirit School Division No 204 v Christ the Teacher Roman Catholic School Division No 212, 2017 SKQB 109 at para 16 [Good Spirit School Division] (stating "the largest component of government funding is tied to student enrolment. Simply stated, the more students, the more government funding"). See also The Education Act, SS 1995, c E-0.2; The Education Funding Regulations, RRS c E-02.

212. Good Spirit School Division, supra note 210.

213. Act 5.3, supra note 23.

214. The School Choice Protection Act, SS 2018, c 39, s 8.

215. Saskatchewan v Good Spirit School Division No 204, 2020 SKCA 34.

216. Ibid, leave to appeal to SCC refused, 39212 (25 February 2021).

217. Kahana, "Understanding", supra note 14, at 264-65.

218. Kendall Latimer, "Appeal court reserves decision on funding for non-Catholic students in Sask. Catholic schools," CBC News (13 March 2019), online: cbc.ca/news/canada/saskatchewan/catholic-school-division-funding-public-schools-1.5054062 [perma.cc/5USR-J3U7].

219. Kendall Latimer, "'Life and death' appeal of Sask. Catholic school ruling to be heard this week," CBC News (10 March 2019), online: cbc.ca/news/canada/saskatchewan/appeal-hearing-begins-sask-govt-catholic-schools-1.5044878 [perma.cc/A9DY-93CC].

220. "Sask. government invokes notwithstanding clause over Catholic school ruling," CBC News (8 November 2017), online: cbc.ca/news/canada/saskatchewan/sask-notwithstanding-schools-1.4392895 [perma.cc/4FM9-V5FJ].

221. I respectfully disagree with the Saskatchewan Court of Appeal on this point. As explained above, judicial doctrine is only one factor in assessing the impact of notwithstanding legislation on rights. See Part II(B)(3) above.

222. Act 5.4, supra note 25.

223. Ibid, s 2.

224. [1999] 2 SCR 3.

225. [1998] 1 SCR 493 [Vriend].

226. In addition to these cases, the legislature may have been responding to a wave of cases across the country concerning same-sex rights. A strong dissenting judgment in Layland v Ontario (Minister of Consumer & Commercial Relations) (1993), 14 OR (3d) 658 (Div Ct), set out a clear and influential section 15 framework for why heterosexual-only marriage constituted differential treatment under the equality provision. This analysis was ultimately adopted by other Canadian courts, including the SCC in Vriend, supra note 224, and M v H, supra note 223. See especially Kathleen A Lahey & Kevin Alderson, Same-Sex Marriage: The Personal and the Political (Insomniac Press, 2004) at 74-76.

227. Civil Marriage Act, SC 2005, c 33.

228. "Alberta issues first same-sex marriage license," The Globe and Mail (21 July 2005), online: theglobeandmail.com/news/national/alberta-issues-first-same-sex-marriage-license/article1121551 [perma.cc/C876-6GZF]; Statutes Amendment Act, 2014, SA 2014, c 8, s 14.

229. Marriage Act, RSA 2000, c M-5. The Preamble reads: "WHEREAS marriage is an institution the maintenance of which in its purity the public is deeply interested in; WHEREAS marriage is the foundation of family and society, without which there would be neither civilization nor progress; and WHEREAS marriage between a man and a woman has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long standing philosophical and religious traditions; WHEREAS these principles are fundamental in considering the solemnization of marriage."

230. See e.g. Alberta Hansard, 24-4 (23 February 2000) (Mr. Doerksen: "On virtually every count children have the best chance of success and wellbeing when they are raised by their natural father and natural mother" (ibid at 59), implying that same sex parenting is inappropriate); (Mrs. McLellan: "[I]n most marriages there is a mutual, sometimes tacit, sometimes intentionally deferred, sometimes unintentionally deferred, intent to have and to raise children. I think that this biological aspect essentially defines marriage as a heterosexual institution" (ibid at 65), thereby making a connection between marriage and biology); (Mr. Melchin: "The union of two persons of different gender creates a relationship of unique potential strength and potential value to society" (ibid at 66), implying that same-sex marriage does not carry the same value as heterosexual marriage).

231. Alberta Hansard (23 February 2000), supra note 229 at 59 (Mr Doerksen).

232. Egan v Canada, [1995] 2 SCR 513 at 528.

233. Ibid at 545.

234. Reference re Same-Sex Marriage, 2004 SCC 79 at para 4.

235. Civil Marriage Act, supra note 226.

236. Kahana, "Mechanism," supra note 16 at 268-69.

237. See An Act to amend various statutes with respect to election matters, SO 2016, c 22; Election Finances Act, RSO 1990 c E.7 [Election Finances Act, 1990].

238. Ibid, s 43.

239. Working Families Ontario v Ontario, 2021 ONSC 4076 at para 6 [Working Families].

240. Protecting Ontario Elections Act, 2021, SO 2021, c 5, s 15.

241. Working Families, supra note 238 at paras 6-8.

242. Ibid at paras 90-93.

243. Ibid at paras 46-56.

244. Ibid at paras 76, 82.

245. Bill 307, An Act to amend the Election Finances Act, 1st Sess, 42nd Leg, Ontario, 2021, ss 2, 4.

246. Act 5.5, supra note 3.

247. See Colin Feasby, "CONTINUING QUESTIONS IN CANADIAN POLITICAL FINANCE LAW: THIRD PARTIES AND SMALL POLITICAL PARTIES" (2010) 47 Alta L Rev 993. https://doi.org/10.29173/alr176

248. See e.g. Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42-1, No 273A (12 June 2021) at 14097 (Hon Doug Downey) [Ontario Hansard (12 June 2021)].

249. See Attorney General, Backgrounder: Protecting Ontario Elections Act (Ontario Newsroom, 25 February 2021).

250. Working Families, supra note 238 at para 73 ("There is no justification or explanation anywhere in the Attorney General's record as to why the doubling of the pre-election regulated period was implemented").

251. Adrian Morrow, "Ontario unions behind 94 per cent of third-party ad spending in past three elections," The Globe and Mail (9 August 2016), online: [perma.cc/48T4-Q2B7]; Ontario Hansard (12 June 2021), supra note 247 at 14097 (M Doug Downey).

252. Election Finances Act, 1990, supra note 236, s 37.0.2.

253. Harper v Canada (AG), 2004 SCC 33 at paras 11, 66, 84 ("Political speech, the type of speech here at issue, is the single most important and protected type of expression. It lies at the core of the guarantee of free expression....The election advertising of third parties lies at the core of the expression guaranteed by the Charter and warrants a high degree of constitutional protection").

254. Working Families, supra note 238 at paras 63-76.

255. See Monahan, supra note 148 at 169.

256. See Part II, above.

257. For example, proposals to invoke the NWC were made after R v Sharpe in which the SCC struck down some elements of Canada's child pornography prohibition which the Court found could not be considered proportionate having regard to the right of free expression. See 2001 SCC 2; "Supreme Court child porn decision today," CBC News (26 January 2001), online: cbc.ca/news/canada/supreme-court-child-porn-decision-today-1.254406 [perma.cc/3SUR-BSZQ].

258. If one adds the omnibus use, which also may have been tyrannical, the figure is 45 per cent.

259. For the way populism has been shaping Canadian constitutionalism, see Harry W Arthurs, "GOVERNING THE CANADIAN STATE: THE CONSTITUTION IN AN ERA OF GLOBALIZATION, NEO-LIBERALISM, POPULISM, DECENTRALIZATION AND JUDICIAL ACTIVISM" (2003) 13 Const Forum Const 16 at 20. https://doi.org/10.21991/C9MM3W

260. The way I present this hypothetical disagreement between supporters and opponents of the NWC assumes that both parties accept the definition of tyranny proposed in this article and disagree on the interpretation of the article's findings. However, each party may challenge that definition of tyranny and propose a definition based on which the number of tyrannical uses of the NWC will change. For example, supporters of the NWC may argue that my definition of tyranny is too broad and that not every policy whose impact on rights is exceptionally severe, even unjustifiably so, is tyrannical. True tyranny, they would say, requires a complete displacement of rights, which we see in despotic regimes. Under such a narrow definition, none of the uses of the NWC may be deemed tyrannical. From the other side, opponents of the NWC may argue that my definition of tyranny is too narrow. For them, tyranny is any limit on rights that is not justified or proportional. Under this definition, the Saskatchewan back-to-work law, for example, may be defined as tyrannical, as it unjustifiably limited freedom of association.

261. Supra note 148 at 169.

262. "The Charter Dialogue between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn't Such A Bad Thing After All)" (1997) 35 Osgoode Hall LJ 75 at 83. https://doi.org/10.60082/2817-5069.1612

263. Supra note 14 at 43.

264. The terminology is Mark Tushnet's. See supra note 14 at ix.

265. See e.g. Greschner & Norman, supra note 14 at 193.

266. Webber, supra note 14. See also supra note 7; Maxime St-Hilaire & Xavier Foccroulle Menard, "Nothing to Declare: A Response to Grégoire Webber, Eric Mendelsohn, Robert Leckey, and Léonid Sirota on the Effects of the Notwithstanding Clause" (2020) 29 Const Forum Const 37. https://doi.org/10.21991/cf29401

267. See Brian Slattery, "Override Clauses under S. 33 - Whether Subject to Review under s. 1" (1983) 61 Can Bar Rev 3; Daniel J Arbess, "Limitations on Legislative Override under the Canadian Charter of Rights and Freedoms: A Matter of Balancing Values" (1983) 21 Osgoode Hall LJ 113. https://doi.org/10.60082/2817-5069.1973

268. Supra note 223.

269. Vriend, supra note 224.