Notwithstanding clause: Majority see increased use problematic, would pursue abolition

As Prime Minister Justin Trudeau and Quebec Premier François Legault draw lines in the sand over that province’s recent use of the Canadian Charter of Rights and Freedoms’ notwithstanding clause, new data from the non-profit Angus Reid Institute finds Canadians concerned with its increased use.

Trudeau said he intends to better regulate use of the clause and might turn to the Supreme Court of Canada for a ruling on its use; Legault responded by saying that doing so would be a “frontal attack” on “Quebec’s democracy and people.”

In terms of public opinion, three-in-five (58 per cent) say they have been “concerned” (32 per cent) or “very concerned” (26 per cent) with the recent popularity of the clause with provincial governments. Nearly as many – 55 per cent – would like to see it abolished.

In addition, majorities of Canadians believe the two uses of the clause by Ontario and Quebec in 2022 were unacceptable. Quebec’s Bill 96, which promotes the use of French by restricting the use of English in many settings in the province, is believed to be an unacceptable use of the notwithstanding clause by approaching

three-quarters (72 per cent) of Canadians. A plurality (44 per cent) in Quebec disagrees. Since the clause’s inception with the constitution in 1982, Quebec has invoked it more than any other province, including in 2019 with Bill 21, a ban on religious symbols for public employees.

In the fall of 2022, Ontario passed and then quickly repealed Bill 28, which imposed a contract on education support workers and circumvented their right to strike for four years with the clause. More than three-in-five Canadians (63 per cent), including 64 per cent of Ontarians, believe Premier Doug Ford’s government’s use of the clause was unacceptable. Ontario has invoked the clause two times, and considered using it a third, all under Ford, though only one bill has been passed and not repealed.

For Canadians, the worry is that the notwithstanding clause, officially section 33 of the Charter Rights and Freedoms, weakens the rights and freedoms of their fellow citizens. Half (48 per cent) say this, outnumbering those who instead believe the clause strengthens them (10 per cent) or has no effect (19 per cent). As well, there is significant belief the increased use of the clause is damaging national unity. Half (53 per cent) of Canadians say this, nearly double those (28 per cent) who disagree.

The full poll can be viewed online at https://angusreid.org/canada-constitution-notwithstanding-clause-bill-96-bill-28/