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.

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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 This legislation provoked much public criticism and it was repealed eleven days after its enactment.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 Char