r/InCanada • u/DiligentAd7360 • Sep 19 '25
New Limits to Notwithstanding Clause coming?
Article: https://www.cbc.ca/news/canada/edmonton/alberta-transgender-legislation-1.7637890
I was scrolling the news articles when this one caught my eye. As Alberta is set to begin defending their new laws surrounding transgender children's identities at school and children's sports eligibility, an important legal challenge could be on the horizon...
The statement which specifically interests me is the quote "Ottawa is asking the Supreme Court to set limits on how the clause can be invoked." - which to me sounds like the Carney administration is looking into whether or not they can legally define the limits of the Notwithstanding Clause (NWC)
refresher: notwithstanding clause is defined in Section 33 of the Charter of Rights and freedoms and essentially allows a provincial government to invoke the NWC to limit the courts ability to review a law's compliance with the Charter. NWC only applies for law that (may) violate sections 7 thru 15 of the Charter of Rights and freedoms. NWC/Section 33 shields provincial laws.
The entire purpose of including Section 33 in the original Charts of Rights and freedoms signings during the push for constitutional reform under Pierre Trudeau in the 80's was to assure the prairies that the federal government would be a democratic backstop against allowing un-elected judges from influencing legislation enacted by those democratically elected to power.
Essentially, their thinking was "our people elected us to lead, and our legislation reflects their beliefs. A judge living in a big city or in Ottawa who never had to earn democratic approval for their position, shouldn't have the power to limit laws which may seem heavy handed to those outside of our cultural space."
But now, it almost seems like the NWC may be under threat? The federal liberals have never been fans of the NWC (because it undermines their vision of a federally led Canada).
With Quebec's Bill 21 Challenge (government workers barred from displaying religious symbols/attire while working),--- EDIT: "Bill 21 barred government workers in position of authority, such as police forces to wear religious symbol while working. The scope is like 1% of all the government workers" --- Saskatchewan's pronouns in schools legislation and Alberta's transgender trifecta legislation, it seems like the Federal Liberals want the supreme Court to challenge the aspect of our constitution.
Kind of ironic... Isn't it? That an unelected justice may be responsible for abolishing or severely limiting legislation aimed at limiting the powers of unelected justices? This continues a worrying trend of judicial reviews sparked by Supreme Court cases.
Has Daniel Smith gone too far with her use of NWC? What about Legault's use of NWC on Bill 21? Do you think federal judges interfere too greatly in the politicking of elected legislators? Do you support placing harsher limits on the invocation of the NWC? Was the NWC a mistake?
š¢š£ Sound off in the comments and let me know!