The last few weeks have been big ones for those of us who have been following the resurgence of the notwithstanding clause (Section 33 of the Canadian Charter of Rights and Freedoms), with a scarcely believable five invocations since the end of October.

Alberta’s Bill 2 forced striking teachers back to work. Quebec’s Bill 94, a dramatic extension of the province’s 2019 restrictions on religious symbolism, focused this time on public schools.

Finally, as forecast by a leaked memo in September, we got three more proposed invocations (or a single three-pronged invocation) in Alberta’s Bill 9, with the government attempting to add notwithstanding provisions to three laws impacting the province’s trans community, including a bar on puberty blockers and hormone therapy for under-16s.

A surge in Section 33 invocations

While it’s no longer surprising to see provinces pull the notwithstanding lever, it’s the first time we’ve seen this sort of fast-paced flurry in such a short period (even two invocations in a year would be notable). So, with this new, unfortunate milestone reached, public attention is understandably shifting back to the obvious question: How did we end up with a “kill switch” in the Charter?

I don’t think our problem is necessarily the kill switch, which was added to the Charter as an act of historically informed problem-solving. Rather, our problem is that our political culture is evolving in a problematic direction, with derogating from the Charter increasingly serving as an opportunity for political point-scoring rather than what had originally been viewed as an act of political suicide.

If this doesn’t change, if we can’t get back to a place in which mutual respect between courts and elected officials is the norm, we’ll need to think seriously about adding fresh layers of regulation around the notwithstanding power (see Manitoba’s Bill 50 as an example). Frankly, we should have been thinking about this years ago, as I warned in a 2019 law journal article.

Now back to the question: Why the kill switch? The conventional story is that certain provinces would agree to the inclusion of the Charter in the Canadian Constitution during patriation in 1982 only in return for the addition of a clause that would allow them to retain ultimate legislative power.

But there’s a more complex story that too few people know – one that reveals a sincere attempt at learning from the often-fraught history of our more constitutionally experienced neighbours in the U.S.

The wisdom of Homer

The Simpsons can help us frame that story. In one episode, when Homer buys a gun and his wife Marge expresses concern, Homer tells her: “A gun is not a weapon, Marge. It’s a tool. Like a butcher knife, or a harpoon, or… uh, a… an alligator.”

It’s a classic Simpsons line, escalating from the extreme to the absurd and delivered with total sincerity. What’s really interesting, though, is the unsaid factor that motivates Marge’s fear and Homer’s self-confidence – the question of trust.

Can Homer be trusted with a gun? This is what determines whether we lean toward fearing an implement as a weapon or cherishing its utility as a tool. Is this thing in the right hands? Are those hands trained? Are they being supervised? Is there someone we can call to stop them if they go rogue or to provide aid if someone gets hurt?

The notwithstanding clause raises all of these questions. It can be used as a weapon, and has been used as a weapon, but it can also serve a more noble purpose – curbing excesses of judicial power.

What the U.S. Lochner era taught Canadian leaders

Such excesses come in all shapes and sizes, but there was a specific cautionary tale that was in the minds of some of the clause’s early proponents, including former Alberta premier Peter Lougheed and former Saskatchewan premier Allan Blakeney.

From the late 1890s until 1937, the U.S. Supreme Court endorsed a laissez-faire ideology that was at odds with anything even resembling worker-protection legislation.

Most famously, in the 1905 case of Lochner v New York, the court struck down a state law barring the imposition of excessive working hours on bakers. In short, the court ruled that the law unjustifiably interfered with the freedom of employers and employees to enter contracts on whatever terms they wanted, paying no attention to the legislature’s legitimate concern for workers’ rights.

By focusing only on the apparently sacred value of contractual liberty, the court was using one simplistic understanding of liberty to undermine a more nuanced one. It was also running roughshod over the will of democratically elected officials.

Thirty years later, with the court still following the same playbook, the U.S. ended up on the brink of a constitutional crisis. After the Supreme Court rejected key pieces of New Deal legislation, then-president Franklin D. Roosevelt hatched a desperate plan to add new seats to the court and to nominate new judges who were more sympathetic to his overwhelmingly popular national agenda.

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This didn’t happen because the court ultimately reversed course. But if FDR had brought his plan to fruition, it would have raised difficult questions about judicial independence and the rule of law, to say the least.

What some Canadian premiers learned from this episode was that a judicially enforceable bill of rights can – in the wrong judicial hands – become a dangerous weapon. Lougheed, Blakeney and other premiers championed the notwithstanding clause as an emergency brake that legislatures could pull when courts get things catastrophically wrong.

This was a sincere attempt to fix a problem that had long plagued American lawyers and scholars, but its success would depend on whether it was framed in a way that addressed the inverse risk of legislative excess and abuse.

Why the original political safeguards have eroded

The dramatic uptick in use of Section 33 and the shift toward uses that undermine the rights of vulnerable groups are the consequences of the decision to leave the notwithstanding clause regulated loosely, through the oblique forces of electoral politics rather than law. The theory was that if people don’t like a use of the clause, they would vote out the government that used it.

The main premise behind this drafting choice seems to have been trust – an assumption that even a majority government with a plenitude of public power would still be inclined to treat the judicial interpretations of the Charter with respect, perhaps fearing intense public backlash if they’re seen to be doing otherwise.

It’s abundantly clear, however, that this assumption is no longer holding.

Rebuilding guardrails around Section 33

Interestingly, some U.S. Democrats foreshadowed this during the Lochner era. When FDR was planning to pack the Supreme Court in the mid-1930s, Senator Burton Wheeler (a member of the President’s own party) proposed a federal notwithstanding clause-type mechanism as an alternative way of dealing with the intransigent court.

Wheeler’s notwithstanding clause wasn’t like the later Canadian one, however, but was hemmed in by three key constraints – the need for a pre-invocation election, the bicameralism of the U.S. Congress and the need for a two-thirds majority in each of the House of Representatives and the Senate.

Think carefully about what this might tell us. Wheeler’s Democrats were faced with a rogue Supreme Court and an impending constitutional crisis. The stakes could hardly have been higher. Yet, he nonetheless hesitated to trust himself and his colleagues with the unfiltered power to correct the court’s mistakes through ordinary lawmaking.

This is what we need to realize now. The notwithstanding clause is an innovative attempt to address the risk of a Canadian Lochner decision, but the version of it that we have was meant for a different culture context.

If we can’t rediscover that lost context, we’ll need to think seriously about how to build new accountability mechanisms around Section 33 (again, see Manitoba’s Bill 50). Otherwise, we won’t have an innovative constitutional tool. We’ll be stuck with something more akin to a butcher knife, a harpoon, or an alligator.