Arts, Faculty of
Political Science, Department of
DSpace
Salamatian, Siavash
The individual rights override provision (the notwithstanding clause) included in the 1982, Canadian Charter of Rights and Freedoms had traditionally been viewed as a mechanism that outside of Quebec was too politically costly to use. This understanding of the clause has rapidly shifted in recent years with provincial leaders having musings about a more frequent use of the clause. This paper employs a mixed-methods approach in its study. I first measured public opinion since 1988 on who Canadians believe should adjudicate Charter disputes. I then employ an original theoretical table to compare the discourse of the drafters of the 1982 Constitution with the current provincial leaders who have used the clause to track changes on how permissive elites believe a use of the notwithstanding clause should be and for what uses it can be invoked. Finally, to empirically test whether a ‘federalism’ use of the clause is actually reflected in public opinion, I identified several invocations of the clause and tested provincial sentiments towards those particular issues in comparison to the national values. Ultimately, I find that there is increasing trust in the provinces over the federal government; elite discourse suggests that there is now a more permissive understanding of using the clause for federalism purposes; and when the clause is invoked there is a difference in preferences between that province and the rest of Canada. However, the findings of the last theory may not be entirely due to provincial differences. The key contribution of this research is to look at the notwithstanding clause as a mechanism that is being used to express provincial differences in the federation, rather than solely a political choice to avoid accountability.
A Typical Canadian Constitutional Story:The Mechanization of the Notwithstanding Clause as a Tool for DecentralizationSiavash SalamatianPOLI 492: Honours ThesisThe University of British ColumbiaDepartment of Political ScienceCo-Supervisors:Dr. Gerald Baier & Dr. Lisa SundstromApril, 22, 20242Political authority will, at some point, be exercised oppressively-Professor John D. Whyte, On Not Standing for Notwithstanding, 19903AcknowledgementsThis research, which concludes my undergraduate time at UBC, is a result of the help and supportof many people over the years. Firstly, a big thank you to Dr. Sundstrom for facilitating the honoursseminar this year. Under her guidance, the seminar not only helped me in conducting this research, but italso connected me to T.A.s and Ph.D. candidates that provided insightful feedback in sharpening thearguments. Most importantly, the seminar allowed me to learn from my classmates who I am sure havebright futures ahead.I’d like to also thank Dr. Baier for his guidance over the past year. He always had a readingavailable to address any issues I brought up, and was generous enough to lend me his own copies toconduct my own analysis. His knowledge on the topics of judicial politics is impressive, and I hope to oneday have this level of expertise on a subject matter.To the entire UBC political science community. Thank you for making the past 4 years somemorable. From the professors who have inspired me and given me career advice, to fellow studentswho challenged my writing so as to make it better, my UBC experience would not be the same withoutyou.To my friends, thank you for always listening to me, even while I pestered you with my progresson this thesis. And, a special shoutout to Eduardo: very glad, but also tired in having submitted this thesis(at all stages) with you!Finally, I would be remiss to not thank my family. I realize that everything I do is in the shadowof all those who came before me and have inspired me. It is especially true that I wouldn’t be where I amtoday, were it not for the sacrifices made by my mom and dad–Merci!4AbstractThe individual rights override provision (the notwithstanding clause) included in the 1982,Canadian Charter of Rights and Freedoms had traditionally been viewed as a mechanism that outside ofQuebec was too politically costly to use. This understanding of the clause has rapidly shifted in recentyears with provincial leaders having musings about a more frequent use of the clause. This paper employsa mixed-methods approach in its study. I first measured public opinion since 1988 on who Canadiansbelieve should adjudicate Charter disputes. I then employ an original theoretical table to compare thediscourse of the drafters of the 1982 Constitution with the current provincial leaders who have used theclause to track changes on how permissive elites believe a use of the notwithstanding clause should beand for what uses it can be invoked. Finally, to empirically test whether a ‘federalism’ use of the clause isactually reflected in public opinion, I identified several invocations of the clause and tested provincialsentiments towards those particular issues in comparison to the national values. Ultimately, I find thatthere is increasing trust in the provinces over the federal government; elite discourse suggests that there isnow a more permissive understanding of using the clause for federalism purposes; and when the clause isinvoked there is a difference in preferences between that province and the rest of Canada. However, thefindings of the last theory may not be entirely due to provincial differences. The key contribution of thisresearch is to look at the notwithstanding clause as a mechanism that is being used to express provincialdifferences in the federation, rather than solely a political choice to avoid accountability.5Table of Contents1 Introduction............................................................................................................................................... 62 Grounding the Research...........................................................................................................................83 Literature Review......................................................................................................................................93.1 Purposes of the Charter......................................................................................................................93.2 The Notwithstanding clause.............................................................................................................113.2.1 Democratic discourse on the clause....................................................................................... 113.3 Federalism in Canada and the clause’s role.....................................................................................143.3.1 Quebec Exceptionalism and the clause..................................................................................153.4 Current literature..............................................................................................................................154 Theory & Hypothesis.............................................................................................................................. 16T1.1................................................................................................................................................. 16T1.2................................................................................................................................................. 17T2.................................................................................................................................................... 18T3.................................................................................................................................................... 185 Theory 1................................................................................................................................................... 195.1 Methodology 1.................................................................................................................................195.2 Descriptive Analysis 1.....................................................................................................................205.3 Discussion of Results 1....................................................................................................................236 Theory 2................................................................................................................................................... 246.1 Methodology 2.................................................................................................................................246.2 Descriptive Analysis 2.....................................................................................................................276.2.1 Elite Discourse of the Drafters of the Constitution................................................................276.2.2 Elite Discourse of the Current Uses of the Notwithstanding clause...................................... 306.3 Discussion of Results 2....................................................................................................................327 Theory 3................................................................................................................................................... 337.1 Methodology 3.................................................................................................................................337.2 Descriptive Analysis 3.....................................................................................................................347.3 Discussion of Results 3....................................................................................................................388 Conclusion................................................................................................................................................40Appendices.................................................................................................................................................. 42References................................................................................................................................................... 4761 IntroductionWhat is commonly known as the Notwithstanding clause [NWSC] is part of the 1982 Charter ofRights and Freedoms under that document’s section 33. The Charter affirms that legislators “mayexpressly declare [through legislation]” that any proposed act under their jurisdiction may “operatenotwithstanding a provision included in section 2 or sections 7 to 15” of the Charter; this use would stayvalid for up to a period of 5 years before having to be renewed.1 The applicable sections have to do withfundamental freedoms, legal rights, and equality rights.2 Although such a clause in an entrencheddocument of individual rights might seem illiberal in that it allows for some circumvention of rights, theCharter is actually an improvement from a time when parliamentary supremacy had no such barriers. TheNWSC has acted as such a high political barrier for politicians that in fact its two most controversial usesup to 2018 were Quebec’s 1988 Bill 101 use to promote French at the expense of English, andSaskatchewan’s 1986 use for back to work legislation (the only successful use of the clause outside ofQuebec until 2021).3There has been a sharp increase in the implementation of the NWSC across provinces since 2019,most of which were met with opposition from the public and some Canadian politicians from all levels ofgovernment. In 2019 Quebec used the clause to safeguard Bill 21 which stops some public servants fromwearing religious symbols.4 In 2021, in response to a court ruling calling increasing restrictions on thirdparty political advertising from six months to one year a Charter violation, Ontario became the nextprovince to use the clause to pass the regulations through Bill 307.5 2022 saw Quebec invoke the clause inBill 96 which further stiffened the use of English in the province by limiting its use when interacting withthe Quebec public service and increasing language restrictions on businesses.6 Perhaps the most directattack on individual rights came in 2023 when Saskatchewan used the clause to require parental consentbefore students under 16 can change their gender pronouns at schools.7 Commentators have noted thatsimilar anti-trans policies in New Brunswick (policy 713, 2023) and even more aggressive policies seenin early 2024 in Alberta are likely to use the clause.8 In fact, the New Brunswick Premier has veryexplicitly not ruled out using the clause for a yet to be tabled bill, and the government of Alberta is8 CTV, Sweeping new gender identity policy in Alberta.7 Globe and mail, The notwithstanding clause being used by Saskatchewan, explained; CBC, Sask. Parental Bill ofRights introduced, invoking notwithstanding clause.6 CBC, Quebec’s French law Bill 96 comes into effect.5 CBC, Ontario government moves to invoke notwithstanding clause.4 CBC, Quebec’s Bill 21 challenged in Court of Appeal.3 CTV, Ford explains why he’ll use the notwithstanding clause to shrink Toronto city council, 00:40.2 The Charter of Rights and Freedoms.1 Section 33, The Charter of Rights and Freedoms.7seeking to become an intervener alongside Saskatchewan in their use of the NWSC for the province’stransgender pronoun policy.9This research addresses the puzzle of why the NWSC wasn’t used when the constitutionalizationof individual rights was in its embryonic phase, yet 40 years on when these rights are now presumablymore entrenched in the minds of citizens there has been an uptick in its use. Curiously, during priorperiods of rights expansion the clause wasn’t used, but now the clause is used for many goals includingthose that have to do with the recognition of transgender individuals.The research addresses this puzzle of different reactions to rights expansion (ie. choosing toinvoke the NWSC or not) by answering the following research question:What explains the increasing rise of the use of the Notwithstanding clause across provinces?This research will proceed as follows. The next section outlines some background on the NWSCand the puzzle that grounds this research. Next, section 3 discusses the current theoretical literature on theCharter, justifications for the use of NWSC, and some early empirical findings on this phenomenon.Section 4 will highlight the three broad theories that will be investigated. Theory 1 will study voterperceptions of Canadian institutions, using public opinion data. Theory 2 will study the changes in elitediscourse between 1981 and 2024. Lastly, theory 3 will again use public opinion data to measure voterpreference differences amongst the provinces. Sections 5 to 7 are each dedicated to the methodology,analysis, and discussions of each theory. Lastly, section 8 will conclude the paper’s findings and provideareas for further investigation.The culmination of this research provides some novel contributions to the current literature. AsNicoladies and Snow point out, due to the recency of this phenomenon, scholarship “should delve moredeeply” into the new understanding of the clause.10 Further, unlike scholarship by Crandall and lawlorwhich views the clause as only a court curbing mechanism, this research will focus on the NWSC as atool of federalism (using the clause to vocalize provincial differences) which Hiebert argues scholarshiphas paid less attention to.11 This research will also expand the time frame for court support that Crandalland Lawlor documented, and will be the first to also provide a documentation of elite discourse on theclause throughout its life.Ultimately, this research finds that the override provision has become a tool to reflect thediversity of values in the Canadian federation. Public opinion indicated that Canadians have increasingtrust in courts and believe in the need to protect minority rights. Although there was some evidence thatthe gap in trust between courts and politicians was closing, and in recent times Canadians desired more11 Hiebert, Notwithstanding the Charter, 59.10 Nicolaides and Snow, A Paper Tiger No More?, 72.9 Globe and mail, N.B. not ruling out notwithstanding clause in bill to force people into drug care; CBC, Albertaseeks intervener status in Sask. court case over controversial pronoun policy.8powerful provinces, the strongest findings of this research come in the latter part of the paper. Theresearch identified that there has been a general shift in elite discourse from viewing the NWSC as a toolof restricted utility to be used for majoritarian purposes, to one that ought to be used more frequently andcan also be used to express provincial values that are antithetical to the pan-Canadian identity. Empirical,public opinion findings also supported that elites do use the clause when there is a contrast between thebeliefs of their province and Canada generally.2 Grounding the ResearchIn the 42 years since the introduction of the Charter, scholarly understanding of the controversialNWSC and individual rights in Canada has drastically changed. Scholars argue that Canadian courtsalways had the opportunity to declare acts ultra vires when it came to provincial and federalresponsibility, but the courts didn’t enjoy this power when it came to the protection of individualrights–parliamentary supremacy reigned supreme with legislators deciding what imposed on ourfreedoms.12 Even the 1960 Canadian Bill of Rights included a section (section 2) which allowedparliament to circumvent individual rights if it so chose, and that set the precedent for the inclusion ofsection 33.13 Twenty years after the patriation of the Constitution, Leeson writes that in terms of actual use“it has been 12 years since Quebec used [the NWSC]” and despite musings to use it by other Premiers(namely Alberta’s Ralph Klein) only Saskatchewan used it in 1986 with great controversy to stop a labourstrike.14 In fact, other than the innovation of a pre-emptive use of the clause to “bullet proof legislation”from court challenges (something not thought of by the drafters of the Constitution), Leeson claims thatthe only development of the clause was its fall into disuse which makes him characterize it as a “papertiger.”15 It takes less than another 20 years for scholars to reject this label. In 2021 Nicolaides and Snowposit whether the NWSC is “a paper tiger no more” while finding mainly negative media coverage on itsrecent increased usage.16 Many scholars catalogue all of the instances when the clause is invoked, hence, Ihave also included a table of invocations of the clause at the time of writing this research to ensure clarityfor future scholars.[FIGURE 1]*17This shift in understanding of the clause creates a puzzle: in earlier times of the expansion ofrights, when the culture of rights protections by courts was still new to Canada, the notwithstanding17 This table was constructed based on the documentation of Kahana and as coded by Crandall and Lawlor. Icross-referenced these findings with research by Snow and Nicolaides and through a look at contemporary mediaand legislative Hansard for the newest additions to the table.16 Nicolaides and Snow, A Paper Tiger No More? The media portrayal of the notwithstanding clause inSaskatchewan and Ontario, 60.15 Ibid, 315, 322.14 Ibid, 315, 314.13 Ibid, 303.12 Leeson, Section 33, The notwithstanding clause: A paper tiger?, 310.9clause wasn’t successfully used outside of Quebec; yet, today, when the protection of rights by courtsshould be more accepted, provincial legislatures have started to more frequently use section 33.As an example, scholars look at the rights expansion for gay and lesbian individuals and note theway conformity was brought forth through the Charter, despite the wishes of legislators who didn’t usethe notwithstanding clause to stop it. Smith explains that Canada has a federal system which “creates acomplex state architecture that allocates policy areas to different jurisdictions” and although differentjurisdictions may want to pursue different policy goals (such as the provincial prerogative to recognize thecommon law spousal relationships) the effect of the entrenchment of the Charter and the “SupremeCourt…was to bring about policy conformity” amongst these jurisdictions.18 These jurisdictions wereunwillingly unified in rights recognition, but didn’t use the NWSC to reject the imposition of thisuniformity. This is explicitly seen when the Supreme Court of Canada (SCC) recognized that “Alberta’shuman rights legislation” was deliberate in not including sexual orientation and was therefore a Charterviolation–Alberta still didn’t use the clause to circumvent the ruling.19 Smith also points to Prime Minister(PM) Harper’s government in the 2000s who amended the Criminal code to raise the age of consent for“heterosexual intercourse” to 16, yet didn’t remove a clause that barred anal sex outside of marriage until18 despite lower courts finding this clause to be a Charter violation; Harper explicitly kept the clause inwhile knowing it won’t be effective, but he didn’t use the notwithstanding clause to insulate it.20 Smithhighlighted that during this period of rights expansion governments weren’t willing to pay the politicalcost of using the NWSC to enforce their goals, but she also highlights that recent debates have focused on“education policy…an important area of provincial jurisdiction” and the rights of the LGBTQ individualsin those settings–governments have shown less trepidation in using the clause in this period of rightsexpansion.21 This creates the aforementioned knowledge gap as to why politicians were willing to abideby court decisions that they didn’t agree with in the past, yet now are more willing to stick to theiranti-rights rhetoric and use the override provision.3 Literature Review3.1 Purposes of the CharterTo understand the role of the NWSC, a closer look at its enabling document–The CanadianCharter of Rights and Freedoms–is warranted, with a particular understanding of why the Charter waspursued. Scholars such as Russell point out that “from the late 1960s on” it was the “Trudeau Liberals”who most actively pursued and advocated a vision of a patriated constitution that included entrenchment21 Smith, Federalism, courts and LGBTQ policy in Canada, 114.20 Ibid, 114.19 Ibid, 110.18 Smith, Federalism, courts and LGBTQ policy in Canada, 108, 111; SCC, Vriend v. Alberta, 1998.See also: Hiebert, Charter Conflicts: What is Parliament’s Role, 162-200.10of certain rights.22 This political entrepreneurship and advocacy was so strong that some scholars arguethat results of the 1982 constitutional negotiations are “best understood as the imposition by the Trudeaugovernment of its own conception of Canada;” taking this understanding into account we will look at thepurposes of the Charter through its objectives as envisioned by Pierre Trudeau.23 Using this framework,we won’t fall into the “understandable tendency” to look at the Charter as solely “an instrumentwhose…objective is to protect civil rights,” instead we will also appreciate Trudeau’s “broader strategy ofnation building” by using the Charter as “an instrument of national unity.24The attempt to use the Charter as a catalyst for national unity falls in line with Trudeau’sconception of Pan-Canadian nationalism. Coming out of the 1980 Quebec Sovereignty-associationreferendum, Trudeau understood the need that Canada “be seen as to be sovereign” because goingforward it would be difficult for Quebecers to identify with a national identity if this identity didn’tincorporate Quebec’s concerns and was only amendable in the United Kingdom–this could only beachieved through patriation.25 The Charter had to be part of this arrangement so that the “education rightsof linguistic minorities” could be protected and Canada could better be seen as representing French on anational front; conveniently, while also fighting for Quebec’s anglophone population in the courts.26 Thisis also likely why education rights of linguistic minorities and mobility rights are not subject to section 33(the NWSC cannot be used to contravene these rights).27 It was also envisioned that the Charter wouldhave a centralizing force since national adjudication of “human rights invites uniform application” andsets a standard level for a set of national values.28 Unfortunately, by not garnering Premier Lévesque’ssignature Trudeau “contradicted the…logic of patriation;” using a foreign government–the British Houseof Commons–to force a constitutional change on Quebec without Quebec’s justified concerns of EnglishCanada’s imposition on Quebec and only served to antagonize Quebecers rather than bring them into thefold of the nation identity.29The more routine way of describing the Charter is as a document protecting individual rights.Former Chief Justice of the Supreme Court of Canada, Beverley McLachlin, highlights the Charter’sliberal democratic function when explaining that “no longer is democracy synonymous with naked29 McRoberts, Misconceiving Canada, 177.28 Morton, The effect of the Charter of RIghts and Freedoms on Canadian Federalism, 180.27 Sniderman et al., The clash of rights, 161.26 McRoberts, Misconceiving Canada, 177; Morton, The effect of the Charter of Rights and Freedoms on CanadianFederalism, 179.25 McRoberts, Misconceiving Canada, 139,142; Russell, The political purposes of the charter: Have they beenfulfilled: An Agnostic’s report card, 34.24 McRoberts, Misconceiving Canada: The struggle for National Unity, 171; Roach, The supreme court on trial:democratic dialogue or judicial activism, 60.23 Morton, The effect of the Charter of RIghts and Freedoms on Canadian Federalism, 177.22 Russell, The political purposes of the charter: Have they been fulfilled: An Agnostic’s report card, 34.11populism” where majoritarianism rules.30 Instead, the Charter is a “document that proclaims [citizen’s]entitlement” to certain individual rights, which are protected by the judiciary and can’t easily be amendedor be put up for discussion through ever-changing legislatures.31 However, only a decade after theentrenchment of the Charter, Russell argued that the Charter failed its objectives: there was more“disunity than unity” and any liberalization of the criminal justice system by the courts warranted morestudies of “police compliance”.32 This scholarship highlights that even a decade after its entrenchment theCharter was still controversial, yet politicians abided by the Charter then and in the subsequent threedecades. Those are the same controversies facing the Charter today, yet contemporary politicians are nowfrequently resorting to the NWSC to voice their concerns.3.2 The Notwithstanding clauseThese goals presented a fundamental shift in the original Canadian framework and were met withheavy opposition from primarily provincial Premiers. To rebalance the change that confronted them, andto overcome the impasse caused by Quebec, Western provincial Premiers demanded the inclusion of theNWSC.33 Although there was some conceptual backing for the NWSC, the specific clause that wasdeveloped was the result of “raw politics of bargaining” more than “any grand normative theory aboutconstitutional design.”34 Although some scholars and Trudeau accused these premiers of wanting toprotect their own power, there is a large body of literature that backs the basic concept of the NWSC.353.2.1 Democratic discourse on the clauseThe theoretical basis for the inclusion of the NWSC can broadly be understood as concerns aboutdemocratic responsibility to voters and the desire to conserve parliamentary supremacy. Bickel mostfamously described the perceived problem of judicial review as a “countermajoritarian difficulty” anddescribed the process by which unelected judges can read-in amendments or rule legislation ultra vires asbeing a “deviant institution in the American Democracy”.36 He proceeds to paint judicial review asundemocratic because to him when the Supreme Court rules an act of an elected body as beingunconstitutional, “it thwarts the will of representatives” of current society and “it exercises control, not onbehalf of the prevailing majority, but against it.”37 The problem of Judicial review is further exasperatedwhen it is coupled with Judicial activism. Although Judicial activism is not a well defined concept, it cangenerally be viewed as judicial decision making which is “too eager to overturn laws” to justices37 Ibid 16, 17.36 Bickel, The least dangerous branch: The supreme Court at the bar of politics, 16, 18.35 McRoberts, Misconceiving Canada, 16734 Leeson, Section 33, The notwithstanding clause: A paper tiger?, 298; Hiebert non use, 696; Roach, The supremecourt on trial, 62.33 Gagnon, Quebec State and Society, 139; Leeson, Section 33, The notwithstanding clause: A paper tiger?, 311.32 Russell, The political purposes of the charter: Have they been fulfilled: An Agnostic’s report card 42, 40.31 Ibid, 67.30 McLachlin, Courts, Legislatures, and Executives in the Post-Charter era, 64.12“inventing rights for minorities” and enforcing them.38 In either case, the US Supreme Court under ChiefJustice Warren, which as Manitoba Premier Lyon put it would “create rights..in..defiance of..accountablerepresentatives,” made Western Premiers aware of the “dangers of judicial activism” especially if it meantthat Ottawa’s judges could encroach on provincial jurisdictional matters.39Prior to patriation, Canada didn’t have to contend with judicial review–at least in terms ofindividual rights–because of its history of parliamentary supremacy. Roach claims that the inclusion of theNWSC makes the Canadian judicial review process more democratic, when compared to the Americansystem, because elected officials have the final say and therefore the ultimate responsibility in theinterpretation of rights.40 Roach makes an argument of constitutional dialogue where judges shouldadamantly defend the rule of law and Charter, while legislatures shouldn’t shy away from using theNWSC if they can justify it to voters and the world.41 This dialogue ensures judicial “deficiencies” areaddressed and that un-elected individuals don’t have ultimate ruling on the constitution.42 Leeson alsosupports this need for dialogue when referencing the Supreme Court case RJR-MacDonald V Canada: in1995 the SCC ruled that a complete ban of tobacco advertising violated section 2 of the Charter, andLeeson claims because of great public support and the fact that the ruling protected commercial interestsrather than individual rights, parliament should have considered using the NWSC.43 Hogg uses thefollowing American aphorism to argue for constitutional dialogue and against a judicial monopoly onconstitutional interpretation:“We are under a Constitution, but the Constitution is what the judges say it is!”44Lastly, Saskatchewan Premier Blakeney (1971-1982) made another case for the inclusion of theNWSC. He argued that the Charter only includes rights that were thought to be best upheld in courts, andother rights that were better protected by legislatures were kept out.45 He claimed that framing the NWSCas a “suspension of rights” is misleading since, to him, the NWSC is a “mediating mechanism” for whenthese two sets of rights collide and governments need to decide which right supersedes the other–not todisbar individual liberties.46 As a New Democratic party (NDP) Premier, the rights Blakeney wasconcerned about were collective rights such as the right to strike and government’s ability to instituteaffirmative action programs, which he thought could be threatened by a conservative court.4747 Leeson, Section 33, The notwithstanding clause: A paper tiger?, 306.46 Ibid 1/2.45 Blakeney, The Notwithstanding clause, the Charter, and Canada’s patriated constitution, 7.44 Hogg and Thorton, The Charter dialogue between Courts and Legislatures, 107.43 Ibid, 320; RJR-MacDonald V. Canada 1995.42 Leeson, Section 33, The notwithstanding clause: A paper tiger?, 317.41 Roach, The supreme court on trial, 74.40 Roach, The supreme court on trial, 74.39 Roach, The supreme court on trial, 62, 60.38 McLachlin, Courts, Legislatures, and Executives in the Post-Charter era, 69; Roach, The supreme court on trial,60.13Despite these claims, many scholars disagree with the inclusion of the NWSC. Chief JusticeMcLachlin emphasizes that judicial decision making has always been part of Canada’s history whether inadjudicating the division of powers or in cases seen as judicial activism such as the famous “personscase.”48 Additionally, Whyte emphasizes that independent courts are better at protecting our rightsbecause he believes “political authority will, at some point, be exercised oppressively” and so he washappy to see the clause fall into disuse like the power of disallowance.49 However, Hiebert makes theclaim that during this period that saw the disuse of the clause, legislatures still passed legislation knowingthat it would be struck down; politicians knew that it would take years to be struck down and couldappease their voters by blaming legislative failure on the courts, they just didn’t use the clause.50It is important to note that legislatures can still pass legislation that infringes on Charter rights,but nonetheless stands up under judicial review. In what Knopff and Morton call the “Charter Two Step,”they explain the role that section 1 of the Charter plays in allowing governments to pass legislation thatinfringes on individual rights, but is still held up by courts in the absence of section 33 challenge proofingof the bill.51 They explain that section 1 of the Charter only protects rights “only to such reasonablelimits…as can demonstrably be justified in a free and democratic society.”52 This means that under a twostep analysis, a legislation has to first be deemed as violating a Charter right (with the onus of proof beingon the claimant) and if a violation is found then the government has the task of proving that its legislationis nevertheless reasonable and justified in infringing on those rights.53 This type of analysis providesflexibility for legislatures to advance their goals. As Hiebert points out, this type of analysis allows forconstitutional “conversations between Parliament and courts.”54 She points out that “legislativepreamble[s]...[and] the arguments of government lawyers to explain why the legislation should beinterpreted as consistent with constitutional rights” are just some of the ways governments can justify howtheir legislation balances different rights, or infringes on some and can influence how judges interpretsection 1 and the Charter more broadly, without having to resort to the override clause.55 These scholarlycontributions are important because institutions haven’t changed since 1982, meaning that politicians canstill pass legislation knowing that it will be struck down in the future, or participate in constitutionalconversation using section 1. Yet, the willingness of politicians to use the NWSC, which is a more solid55 Ibid, 50.54 Hiebert, Charter Conflicts, 50.53 Knopff and Morton, Charter Politics, 37.52 Section 1, The Charter of Rights and Freedoms.51 Knopff and Morton, Charter Politics, 36.50 Hiebert, The Notwithstanding clause: Why non-use does not necessarily equate with abiding by judicial norms.49 Whyte, On not standing for Notwithstanding, 355; Leeson, Section 33, The notwithstanding clause: A papertiger?, 317.48 McLachlin, Courts, Legislatures, and Executives in the Post-Charter era.14form of ‘rights infringement’, indicates a new influence on politicians that makes them resort to the clauseand not be malleable on their anti-rights rhetoric.3.3 Federalism in Canada and the clause’s roleThe Charter not only challenged the Canadian institutional framework of parliamentarysupremacy, but also federalism itself by encouraging more centralization.56 Morton argues that the“uniform application” of rights impedes on the differentiation that provinces allow, and the Charter hasallowed the federal government to use “sponsored litigation [to achieve] policy outcomes” that werebeyond its reach prior to 1982.57 Hiebert argues that the notwithstanding clause could be becoming amechanism to fight this overreach by Ottawa in promoting regional loyalties, since it “is the only explicitfederalism element of the Charter” and she has found that “more than half” of its nineteen uses could bedescribed as having been for “federalism purposes” as opposed to democratic ones.58Other scholars further support the federalism divide in Canada and the desire of provinces toprotect it. Wiseman indicates that Canada has differing regions of political culture (Atlantic Canada,Quebec, Ontario, Midwest, and Far West), which at some level are constructed by Canadian institutions.59He argues that the basis of these institutions are “responsible government, federalism, and the Charter”and because “culture is a response learned from living under certain institutions…[these] institutions helpto shape culture.”60 Cairns supports this conception of federalism which he argues is a function of “thegovernments that work the constitution” in which “support for powerful, independent provincialgovernments is a product of the political system itself” and the elite who “[inject]..provincial…meaninginto society.”61 This conception of provincial leaders as societal entrepreneurs is supported whencomparing Saskatchewan and Alberta. When in 1905 Saskatchewan and Alberta were created, both ofwhom are neighbouring provinces consisting of rural and agricultural societies, Saskatchewan “developedan indigenous system of socialized medicine” and gave way to the Co-operative CommonwealthFederation (CCF; the precursor of the NDP) while in Alberta a conservative movement emerged that“became a…solid habit of mind, within the government.”62 Cairns notably characterized the rise of theseprovinces and their identities as emerging “by drawing lines on a map” to explain how the institutions ofthe Constitution have consequences for the outcomes and development of sociological identity.63 Cairnsemphasized the need to “think of constitutional change as…[an] instrument of community63 Cairns, Charter versus Federalism: The dilemmas of constitutional reform, 36.62 Lipset, Agrarian Socialism: The Cooperative Commonwealth Federation in Saskatchewan: a study in politicalsociology, 41; Macpherson, Democracy in Alberta: Social Credit and the Party system 216.61 Cairns, The governments and societies of Canadian federalism, 699, 706.60 Ibid, 67; Ibid, 60.59 Wiseman, In search of Canadian political culture.58 Hiebert, Notwithstanding the Charter: Does section 33 accommodate federalism? 61/64.57 Ibid 180, 188.56 Morton, The effect of the Charter of RIghts and Freedoms on Canadian Federalism, 174, 173.15transformation” and for scholars to understand that “governments realize…that the relative salience to thecitizenry of the…provincial communities [changes based on] what governments do” which is dictated bythe policy choices available to them.64 The NWSC could be viewed as the most profound of these policyinstruments: provincial politicians can create vacuums of rights, otherwise enshrined in the Charter for allCanadians, to not only detach and ultimately differentiate their provincial identity from the broadercommunity, but to also compete for the loyalties of their own provincially concentrated voters.3.3.1 Quebec Exceptionalism and the clauseQuebec’s view of itself in relation to the Charter and federalism can indicate its relativepropensity to use the NWSC. As Gagnon and McRoberts point out, Quebec has a dualistic perspective onCanadian federalism where the federal contract is seen to be between the founding English and French,even amongst many Quebec federalist circles.65 By patriating the Charter without the approval of Quebec,patriation “violated [the] basic understanding of Canada as…a dualistic compact” even amongstfederalists in Quebec.66 The circumvention of Quebec’s understanding led Quebec to use section 33, as aform of protest, “systematically until the election of the Quebec Liberals in December 1985.”67 This couldalso explain why even Quebec federalists, such as Liberal Premier Bourassa, were still willing to use thenotwithstanding clause as they did with Bill 178 to amend Bill 101 and mandate French on signage.683.4 Current literatureCrandall and Lawlor found that only a handful of prominent research projects have focused onpublic support for the Supreme Court of Canada and judicial power: they point to research by Fletcherand Howe 2000, Hausegger and Riddell 2004, Goodyear-Grant, Matthews and Hiebert 2013 and the 1996book The Clash of Rights by Sniderman et al.69 They also find that other than The Clash of Rights andFletcher and Howe’s research, the data on this support exclusively originates from the Canadian ElectionStudies survey (CES).70 Crandall and Lawlor add to this literature by using data from the 2008, 2011,2015, 2019 CES to measure court support over this period, with specific emphasis on the “relationshipbetween (1) court support and political institutions generally and (2) partisanship.”71 Ultimately, they findhigh levels of support for the courts with “some evidence of decline” most recently; they argue that thissupport is “tied to education levels, perspectives towards equality, support for other government71 Crandall and lawlor, Public support for Canadian court, 108.70 Crandall and lawlor, Public support for Canadian court, 94.69 Crandall and lawlor, Public support for Canadian court: Understanding the roles of institutional trust andpartisanship, 94; Goodyear-Grant et al. The courts//parliament trade-off; Fletcher and Howe, Public opinion and thecourts; Haussegger and Riddell, The changing nature of public support for the Supreme Court of Canada;Sniderman et al., The clash of rights.68 Gagnon, Quebec State and Society, 337.67 Gagnon, Quebec State and Society, 139; Leeson, Section 33, The notwithstanding clause: A paper tiger? 313.???66 McRoberts, Misconceiving Canada, 164.65 Gagnon, Quebec State and Society, 141; McRoberts, Misconceiving Canada, 164.64 Ibid, 38, 55.16institutions, and…satisfaction with democracy” with Conservatives showing lower support for Courtsunder Prime Minister Harper.72Nicolaides and Snow and another project by Crandall and Lawlor are two of the few quantitativeinvestigations in the recent rise of the clause’s usage. Nicolaides and Snow focus on the media coverageof the NWSC by creating a dataset on media coverage of the clause that finds that it is mostly correctlyportrayed, yet it is mostly portrayed in a negative light with the orientation of the outlet itself playing alarge role in this portrayal.73 Crandall and Lawlor build upon their previous research and also focus on therole of the media in the clause’s invocation. They use CES data from 2008 to 2021 to highlight that“Canadians…prefer the courts to have the final word” on questions of Charter disputes, and additionallythey find that there is much more media attention to a bill when the NWSC is added to it after a court hasstruck it down rather than when legislatures use it preemptively.74 Because of this data, Crandall andLawlor argue that the NWSC is now an instrument of court curbing (legislatively limiting court power)with “those who have less confidence in the courts” being more willing to support such court curbing.75Turgeon et al.’s 2019 study of Quebec attitudes toward religious symbols is perhaps the bestattempt at explaining the conditions that led to the use of the NWSC through analysis of survey data.76Although this study was conducted prior to Quebec’s Bill 21 and doesn’t specifically measure use of theNWSC, it does provide a framework for measuring regional differences that set the conditions for theinvocation of the clause. Turgeon et al. use a 2014 survey of “6,400 Canadians stratified by province” tomeasure their hypothesis that the Quebec conception of liberalism (“substantive liberalism”) is differentto the rest of Canada’s “procedural liberalism” which explains the province’s approval of stricter controlstowards public displays of minority religious symbols.77 The survey asks questions such as “support forrestrictions [on wearing religious symbols] for police officers” and highlights the localized effect byindicating “74 percent” of Quebecers would support such restrictions compared to only “45 percent ofother Canadians.”784 Theory & HypothesisT1.1As the body of literature highlights, the Charter served two purposes: protection of rights andnation building.79 Looking at the protection of rights function of the Charter, it is clear that this requires a79 Russell, The political purposes of the Canadian Charter of Rights and Freedoms.78 Turgeon et al., A tale of two liberalisms? 253.77 Turgeon et al., A tale of two liberalisms? 252, 250, 247.76 Turgeon et al., A tale of two liberalisms? Attitudes towards minority religious symbols in Quebec and Canada.75 Ibid, 2.74 Lawlor and Crandall, The Canadian Charter’s notwithstanding clause as an institutional mechanism of courtcurbing 11,18.73 Nicolaides and Snow, A Paper Tiger No More?.72 Crandall and lawlor, Public support for Canadian court, 94, 108.17transfer of power from legislators to the courts. The inclusion of the NWSC reserved some of thissovereign power for legislators, but the clause was envisioned to be challenging for legislators to use. Thelegislators would be admitting that they are foregoing a court decision that indicates a breach of rightswhen invoking the clause. Whether this interaction is about overcoming the countermajoritarian difficulty,combatting judicial activism, or having dialogue with the courts because of the principle of responsiblegovernment, legislators must believe that voters would support them were they to use this clause. Theassumption here is that legislators have an incentive to win consecutive elections and are less willing totake action that isn’t supported by voters. Therefore, successive governments didn’t use the clausebecause they believed voters would punish them; politicians didn’t use the clause not because they didn’twant to, but because they couldn’t. It wasn’t politically viable due to the perceived electoralconsequences. In repeated studies Crandall and Lawlor have found that those who are more wary of theCourts are more likely to “support traditional court curbing action” and decreasing support may allowparties “to attack the SCC.”80 An illustration of this is the 1999 M v. H SCC case.81 In that case the courtwas unequivocal that “same-sex partners must be treated with the same degree of respect and recognitiongiven to heterosexual couples” and the response from the Ontario Progressive Conservative governmentwas to grudgingly pass legislation entitled “Amendments Because of the Supreme Court of CanadaDecision in M v. H Act, 1999” which showed their distaste for the decision but nevertheless compliedwith it.82 According to this theory, the conditions under public opinion at the time didn’t allow for thegovernment to use the NWSC to achieve the policy goal it wanted, and that resulted in the choice tocomply with the court decision; if public opinion conditions were different (and perhaps the same as now)then the government might have felt emboldened to override the SCC findings.If this new political viability is based on the new approval of voters, there must be a change overtime for their preferences. This increase in approval could be based on a new distrust of courts or anincreasing trust of politicians, yet it must be predicated on a shift on who voters believe is best placed toadjudicate the Charter. Legislators are more willing to use the clause if they believe that votersincreasingly see them as capable and legitimate in adjudicating Charter disputes.T1.2As scholars such as Morton pointed out, rather than looking at the Charter as a transfer of powerto the courts, it could also be looked at as a transfer of rights protections to Ottawa. The federalgovernment can intervene, through the courts, in policy areas it previously had no space in; Morton82 Hiebert, Charter Conflicts, 183, 184.81 SCC, M v. H., 1999.80 Lawlor and Crandall, The Canadian Charter’s notwithstanding clause as an institutional mechanism of courtcurbing, 2; Crandall and lawlor, Public support for Canadian court, 109.18frames this as a “loss of policy autonomy” for provinces.83 If there is decreasing voter legitimacy for thisfunction of the Charter by Ottawa and an increase in legitimacy for Premiers to be arbiters of rights overOttawa, then there is again political viability for Premiers to invoke the clause. If voters view the courts aspart of the federal government, rather than enforcers of an agreed upon national bill of rights, then arejection of the federal government would coincide with a rejection of the protection of rights by thecourts. This might especially be true as Supreme Court judges are not only appointed by the federalgovernment, but also exclusively appointed on the advice of the Prime Minister.84H1.1: Over time, public opinion will indicate a decrease in importance of minority rightprotections by courts and an increase of support for parliamentary prerogativeH1.2: Over time, public opinion must indicate a decrease in importance of minority rightprotections by the federal government and an increase of support for provincial parliamentaryprerogativeT2It could also be the case that how elites perceive the function and permissibility of the invocationof the clause has shifted from its initial entrenchment. Crandall and Lawlor found that many Canadiansaren’t familiar with the clause itself; therefore, what could be deemed permissible uses of the clause couldhave been established by the original elite who drafted the clause and the current elite who use the clause.If the assumption exists that the adjudicators of what permissible uses of the clause are elites themselves,then it must be the case that these adjudicators have a much more permissive outlook on conditions forthe invocations of the clause than the founding elite of the 1982 Constitution. Certainly, a pre-emptive useof the clause isn’t supported by any of the normative theories for the inclusion of the clause, but as otherscholars point out the inclusion of the clause was itself a political struggle. If the founding elites had arestrictive view of the clause (supported by theories about constitutional dialogue and judicial activismconcerns), while that current provincial elite have an expansive view about the clause (ex. overcoming thecountermajoritarian difficulty at all costs) then it would follow that the current political climate wouldallow for increasing use of the clause.H2: Over time, expressed beliefs of elite about the use of the notwithstanding clause as arestrictive measure for majoritarian purposes should decrease, while its use as a permissive toolto promote provincial identities should increaseT3The second purpose of the Charter seems to be the buildup of Canadian values and the unificationof regional diversity in a federal system. As Wiseman and Cairns identified, provincial leaders use the84 Campbell, Independent advisory board for Supreme Court of Canada Judicial appointments.83 Morton, The effect of the Charter of Rights and Freedoms on Canadian Federalism, 178.19Constitution to build their own regional identities by accentuating their differences. Hiebert identified theNWSC as the only instrument in the 1982 Constitution to allow for those aims in the federal system. Sheacknowledged that there are “possible tensions for federalism, such as the promotion of identities basedon Canadianess at the expense of regional loyalties.”85 If it is the case that the NWSC allows Premiers torepel what could be deemed as overreach by the federal government, or the uniformity pressures causedby the Charter, then the Premiers could use the clause as a mechanism to overcome their regionalcountermajoritarian difficulty. By using the clause to fight for the majority belief in their province thepremiers would be competing for regional loyalties that allow them to further distinguish their provincialpolitical culture and keep their relevance as a prominent order of government for the electorate.H3: There must be a greater, concentrated pre-existing voter preference for the policy goals of thebills in regions where the clause was invoked, than other regions where the clause wasn’t invoked5 Theory 15.1 Methodology 1Theory one responds to literature that highlights the transfer of minority rights protections fromparliaments to the courts, and according to some to the federal government as well. This test attempts tomeasure the support for minority rights generally, and who the public believes ought to be the arbiter onthem more specifically. Tracking who Canadians believe should be the arbiter of rights is importantbecause if certain changes in preference exist, then that would support an increase in use of the NWSC. IfCanadians increasingly believe in legislatures and provinces holding the adjudicative function, or if theyare increasingly uncomfortable with rights expansions then these would allow for increasing uses of theNWSC. To track these changes of public opinion overtime the CES is used. The CES is “a large-scalesurvey of citizens conducted each election year” and is often the go-to resource for Canadian scholars.86Starting with the 1988 CES (6 years after the introduction of the Charter), I collated variablesfrom all CESs that measured concepts in four general categories: arbiter of Charter disputes; preferencefor either order of government; level of liberal democratic values; and, level of hesitancy towards newrights expansion. The variables for all measures were cleaned and graphed on a timeline graph where theindependent variable was time and the dependent variable was responses to the questions as an aggregateof all respondents. The responses were aggregated as the unit of analysis was the country as a whole. To‘clean’ and present the responses only one option for dichotomous variables were presented; whenpossible, ordinal variables were recoded into dichotomous variables of beliefs and one portion presented;where applicable the ‘strongly agree’ response was tracked as in some years some variables got the added86 http://www.ces-eec.ca/.85 Hiebert, Notwithstanding the Charter, 60.20neutral option which would have altered a simple dichotomous measurement; and lastly, continuousvariables were only cleaned to take out missing values.5.2 Descriptive Analysis 1The first category that was studied was who should be the arbiter of Charter disputes, and it wasmeasured in two ways. The first measurement came from a direct question that asks who should have thefinal say in a charter conflict: governments or courts. While this question does not directly ask aboutusing the NWSC to overturn or prevent court rulings, it does directly deal with the concept ofadjudication of the Charter and who should be the final interpreter of those rights.87 Because for alegislature to have the final say in a charter dispute it would have to use the clause, this question is a validmeasure of the function of section 33. Further, the phrasing of the question changes slightly over thedifferent iteration of the CES (ie. originally, asking if a provincial law contravened the Charter to laterbeing broadened to if a law generally conflicts with the Charter), but these differences still consistentlycapture the dichotomy between court interpretation of charter conflict and legislative interpretation.The second way of measuring the concept of who should be the arbiter of rights was to measuretrust levels in each of the two options: courts, and politicians. This would be a good measure because ifCanadians have different levels of trust in either agent, then they are more likely to give more deferenceto that group to make decisions such as having the final say on Charter disputes. The more trust oneplaces in either institution, the more likely that person should be to support their actions. The perceptionof whether the public trusts courts or politicians more was also a direct confrontation in the Charternegotiations.88 Because the option of answers was measured slightly differently for each group (courts andpoliticians) it does limit a direct comparison between the two, but it can still show general trends.The question to capture trust in courts was an ordinal scale from ‘not at all’ to a ‘great deal’ ofconfidence in the institution; I tracked the proportion that has confidence in the institution and thereforetrust in courts. I started to record responses on confidence in the courts from the 1997 CES, since in the1993 CES researchers asked about the ‘legal system’ as opposed to courts which is a different concepthaving more to do with lawyers and policing than judicial review in of itself. Unfortunately, the questionon courts is sometimes specified to the supreme court and other years as just courts; I adopted the sameassumption as previous studies that this distinction won’t have a significant impact on the results sinceCanadians don’t often interact with the court system and won’t distinguish between the different levels ofcourts.89 To capture trust in politicians I used a continuous 0-100 scale that asked respondents to indicatehow they ‘feel’ about politicians; more positive feelings should be associated with greater trust. A similarproblem as with the court question exists with the variable measuring trust in politicians: in 2011 and89 Crandall and Lawlor, Public support for Canadian courts.88 Leeson, The patriation minutes, 241.87 Lawlor and Crandall measured this variable from 2008 onwards, while conceding the same limitation.212015 this was specified as federal politicians. Overall, because the survey doesn’t have a separatequestion for provincial politicians it is safe to assume that it captures some level of trust in Canadianpoliticians generally.[FIGURE 2]*90 [FIGURE 3]On the first question of who should have the ‘final say’ on Charter conflicts, there has been asteady rise for court support over the 33 year period studied. There is an 18% increase in support between1988 and 2021 and the range between the lowest year of support and highest is 27%. Only a 3% decreasein support was observed in the most recent year, thus supporting the puzzle that entrenchment ofindividual rights has become part of the political culture. A graph of this question is presented as ‘figure2’ in the appendices.Interestingly on the second set of questions, while trust in both courts and politicians rose until2015, trust in both groups significantly dropped in 2019 and only slightly increased in 2021. Despite thecourt's rise in trust from 59% in 1997 to a high of 79% (2008) and 77% (2015) there has been a drasticdecrease in confidence in the past two years. The court experienced its lowest level of public confidencein 2019 at 58% before seeing a rise in confidence of only 1.5%. A similar but less drastic story holds truefor politicians with their levels of trust rising by 22% between 1997 to 2015, before falling by 25%between 2015 and 2019. During this period at all times courts were seen as more trustworthy thanpoliticians, but the difference between the two has diminished from the high in 2008 of 32% to a low of17% difference in 2019. A visualization of these trust levels and the underlying questions is presented as‘figure 3’ in the appendices.To measure H1.2, I collated the following variables that measure preferences for either order ofgovernment. This was done in the same fashion as testing for who should have the ‘final say’ betweencourts and governments. The first question that was tracked asked respondents whether they prefer astrong federal government or more powers to the provincial government. This question was asked startingin 2006 and I present what percent of the respondents chose a strong federal government. Logically, ifrespondents prefer a strong federal government when asked to choose directly it would track theirlikelihood to accept the national unity function of the Charter into their regions. Secondly, I tracked trustlevels in the federal government and provincial governments (either than in the year 2006). As with thequestions on courts, I used the assumption that confidence in an institution would also indicate trust inthat institution; therefore I used a question that ranked confidence in federal and provincial governmentsan ordinal scale from ‘not at all’ to a ‘great deal’ of confidence in the institution and presented the portionof those who had confidence in them. Such an ordinal variable would back up the results of the previous90 Data for 2021 on this variable is not yet publicly available; I reached out to Crandall and Lawlor to access the2021 data.22federalism question, while also showing whether trust in each institution has changed at an underlyinglevel that hasn’t been presented in the results yet.[FIGURE 4]Preference for a strong federal government was only the majority opinion in 2011, 2015, and2019. This makes sense as the only years that there was more trust in the federal government than theprovinces were also in the years 2011, 2015, and 2019. Both orders of government experienced a steadyincrease in trust while this growth piqued in 2008 for provinces and 2015 for the federal government. Therange in support has always been more muted for the provinces with provinces experiencing a range ofsupport of 20% while it is 31% for the federal government.I also collected data to see whether liberal democratic values have fallen in Canada. This isimportant because liberal values around protecting minorities and individual rights are exactly thefunction of the Charter and the courts that enforce the Charter. If these values have fallen then it wouldindicate that acceptance of the role the court plays is also diminishing and opens a way for the use ofsection 33. To measure these liberal values two variables were tracked. The first was a dichotomousvariable asking whether in a democratic society (a) protecting minorities is more important or (b) lettingthe majority decide? This question goes at the heart of the Charter that attempts to protect minorities, withthe NWSC serving as a mechanism for the majority to ‘decide’ how much to enforce those rights. Theproportion indiciating protection of minority rights is more important is presented, and unfortunately thisquestion wasn’t asked in the 2019 and 2021 surveys. The second question that was tracked asksrespondents whether we have pushed equal rights too far in this country [Canada], which again tracks theliberal value of equal rights protection in society. For this variable, only the proportion of respondentswho indicated that they most strongly disagree with this statement were tracked. This was because thecategories in the middle of the ordinal scale change in different iterations of the survey, and only trackingthose who most disagree provides consistency in our measure. Further, those that most strongly disagreewith the statement are presumably those most likely to push the government to not use the clause.[FIGURE 5]Besides 1997 which saw a modest decrease, year after year Canadians saw the protection ofminority rights as increasingly important in a democratic society. Although the proportion who moststrongly disagreed with the idea that equal rights have been pushed too far in the country grew at a similarrate until 2008, it eventually saw a decline that only recovered to a high of 31%. This high followed againby a modest decline of only 2%.The level of hesitancy towards rights expansion and recognition or level of conservatism was alsotracked. Two ordinal variables were used to measure this concept and for the same reasons as the previousequal rights question the ‘strongly agree’ proportion of the respondents were reported. The first question23asks whether newer lifestyles are contributing to a breakdown of society and the second asks whether thecountry would have fewer problems if there was more emphasis on traditional family values. The firstquestion excels at measuring new populations experiencing rights expansion since any population that isgaining attention in the media would become the heuristic for that measure, thus tracking the level ofhesitancy towards new periods of rights growth. As will be explained later however, this is also a goodmeasure to track 2SLGBTQ+ rights. The traditional family values question also provides the samefunction but would place more emphasis on gay rights; this won’t capture uses by Quebec againstreligious minorities but will capture uses in Alberta and Saskatchewan.[FIGURE 6]It is clear that Canadians are placing less value on traditional family values; that measuredecreased in value at every survey point and ultimately lost 12% in value over 24 years. Conversely,newer lifestyles seem to have worried the country in 2008 and again in 2015 before losing salience againin the most recent two surveys.5.3 Discussion of Results 1The results seem to support H1.1 and H1.2. When asked directly, Canadians still prefer the courtsadjudicating Charter disputes, but the supporting check for the measure paints a different story. In 2019,trust in the courts dropped to a level lower than that of 1997 and has only made a modest gain. Therefore,slowly building trust in the courts has regressed, suggesting that although Canadians still prefer the courtshaving the final say the public is not as trustful of the institution itself as it used to be. Even morenoteworthy is that the gap in trust levels between the courts and politicians in 2021 is the lowest it hasever been, and only edged out in 2015. However, in 2015 the narrowing of the gap came because of a risein popularity of the politicians (likely associated with the 2015 federal election), but the recent closing ofthe gap is due to a decrease in confidence in the courts rather than increasing positive feelings inpoliticians. The diminishing trust in the court, especially as in relation to politicians supports the theorythat Canadians are slowly shifting towards implicitly supporting politicians having the final on Charterinterpretation.The federalism questions are even more convincing in showing that Canadians want power to goback to the provinces. When asked directly, most Canadians now support strong provincial governments,something that wasn't true between 2011 to 2019. Even more noteworthy is that, the trust that wasbuilding in the federal government until 2015 (again likely associated with that election) has taken a sharpfall and for the first time since 2004, Canadians have more trust in the provinces. This reversal in trustwould lend credibility to the notion that Canadians would have less trust in federal government initiativesto instill national unity through government policies, such as the Charter.24Although still not the majority, increasingly individuals place more importance on the protectionof minorities than the will of the majority and think equal rights haven’t been pushed too far. Thissuggests that the liberal rights culture is becoming entrenched in Canada, yet it still doesn’t explain whygovernments would use the NWSC to stop the expansion of equal rights protections.Although for Canada as a unit, rights and the courts have become more entrenched since theinception of Charter, this measurement might not capture the salience of particular issues that mightchange voter preferences. This is further supported since the recent change in federal government trustand especially court trust isn't especially low so as to indicate that their current levels of trust are entirelyunique in their history. This suggests that although these differing levels of trust have played a role in theincreasing use of the NWSC, they aren’t the only cause; if this were the case at other points where theseagents had even less trust there would have been a use of the clause which hasn’t been the case. It is morelikely that these recent low levels of trust allow the clause to be used on an issue by issue basis; if there isa particularly charged issue then individuals might be more willing to put aside their court support. Whatthis test lacks is asking for support in specific government policy, during which the public might be morelikely to support the government on a specific issue as opposed to general use of the clause. T3 providessome insight into this idea. The attempt to measure the level of conservatism or hesitancy to changeattempted to capture this, but only saw a decrease in conservatism in Canada as a whole–thedisaggregation by province to come will provide more insight into this theory.6 Theory 26.1 Methodology 2Theory two attempts to highlight a possible evolution of elite understanding of the purposes anduses of the NWSC as a way of explaining why current elites seem to be more willing to use the clause.This is achieved by comparing a composite of elite discourse at the time of the drafting of the Charter tothe statements around the modern invocations of the NWSC. The innovation in this literature is to makethis comparison using an original two by two table that best identifies understanding of the NWSC.In making this theoretical table, Hiebert proved to be helpful. As prior literature points out thereare essentially two purposes of the Charter: promoting national unity (which can go against the federalbalance in Canada) and protecting individual rights through the courts (which can go against thesovereignty of parliament). This means that there are essentially two ‘reasons for usage’ of the NWSC:federalism purposes and democratic purposes. Although Hiebert admits that this distinction may not beentirely mutually exclusive in all invocations, it does provide a helpful framework which I have used toconstruct the columns of the theoretical grid.91 As she points out, a federalism use for the override clausewould be when the intentions of the legislation are to “protect provincial autonomy or cultural91 Hiebert, Notwithstanding the Charter.25objectives…or [to reject] the necessity of having to conform to national judicial norms…[in] areas ofresponsibility assigned to the provinces.”92 Other uses could be considered democratic uses and thesewould range from providing stability “in light of uncertainty” about the relative jurisprudence, expressingdialogue with the courts about the objectives of legislation that courts might otherwise dismiss, or “as anexpression of political refusal to abide by…Charter constraints for..political reasons” among otherpossibilities.93 It seems that for Hiebert, any use that is not a federalism use is a democratic use–though‘democratic’ may be a misleading title for those types of invocations. In the Canadian context, ademocratic legislation indicates that it has “demonstrably [been] justified in a free and democraticsociety”; by definition, legislation that uses section 33 overrides this barrier that defines the limits ofCanadian democratic values.94 Therefore, a more appropriate term to describe these uses would be‘majoritarian’ as it more correctly highlights the specific function of these invocations: to implement thewill of the majority where otherwise it would be stopped by normal principles of Canadian democracy.Under my model, unless the clause is used specifically to protect collective rights under the principles offederalism, then a use of the clause should be considered a majoritarian use.The rows in the table (belief about the permissibility of usage) are much easier to distinguish.These beliefs either allow for a generous and frequent usage of the clause (a permissive attitude) or beliefsthat only allow the clause to be invoked under limited and special circumstances (a restrictive attitude tothe clause). Theoretically, we can think of a restrictive attitude as those in the literature who view the useof the clause as a last resort to combat judicial activism or to remedy a misjudgment by the court whichwould happen in rare circumstances. Conversely, a permissive outlook on the clause would view theclause as an expression of parliamentary sovereignty or a way to circumvent the court system. If apolitician views judicial review as undemocratic since it blocks the will of elected representatives, thenthe override clause would be viewed as a permissible way for them to express parliamentary supremacywhich isn’t limited to certain instances of court rulings against legislation, but all court rulings againstgovernment legislation. A finer point to make here is that in the Canadian context, democratic supremacyand parliamentary supremacy should not be equated, as the former is more restrictive than the latter. Bothof these groups can claim to be representing the citizenry, and may make justifications for the use of theNWSC when they believe a court ruling is offside from the values of Canadian society and voters morespecifically. Yet, when a democrat makes this argument there is the implication that at least 50% of voterswould agree with that conclusion, and even more if it infringes on a previously entrenched right. InCanada, both the provinces and the federal government use the first-past-the-post voting system, which94 Section 1, The Charter of Rights and Freedoms.93 Ibid, 66.92 Hiebert, Notwithstanding the Charter, 65.26means strong parliamentary majorities can be created with less than even 40% of the vote.95 Therefore, aparliamentary supremacy argument is very permissive when less than half the populace can invoke theNWSC in the name of parliamentary supremacy. Whereas, a democratic argument in the extreme couldlead to tyranny of the majority, parliamentary supremacy arguments are currently in practice tyranny ofthe plurality.Figure 7Theoretical Table on Elite DiscourseReasons for usageBelief about thepermissibility of usageMajoritarian FederalismRestrictive Restrictive, Majoritarian Restrictive, FederalismPermissive Permissive, Majoritarian Permissive, FederalismUnfortunately, as scholars point out “most of the conference [ie. Charter negotiations] was incamera with no minutes”; therefore, it proved challenging collecting quality data on elite discourse duringthe constitution debates.96 To overcome this barrier I used two sources. The first source was HowardLeeson’s 2011 The Patriation minutes: Leeson was a Saskatchewan government staffer on theconstitutional issues and shares his own private, detailed notes of the minutes he held and the events henoted at the time of the constitutional negotiations. I also used the personal memoirs of the ‘three amigos’– Roy Romanow, Roy McMurtry, and Jean Chretien – along with their own documentations of the 1981constitutional debates to try to categorize the understanding of NWSC from the perspective of these threecentral figures who ultimately drafted the patriation package. I collected discourse on the Charter and theNWSC more specifically and gave a fair categorization of the elite understanding in 1981 using my 2 by 2table. To limit my own bias in this analysis, I read through the minutes of the negotiations, then studiedthe memoirs and writings of the key players during those negotiations and many interviews these elitegave on the topic. I noted the major arguments that each person gave and noticed that the same themesrecurred through all the mediums studied; those recurring ideas are the ones I used for the table.To compare the embryonic, elite understanding of the NWSC with the current understanding,specific current invocations of the NWSC were chosen to be studied. All attempts at the use of the clausesince 2018 were studied with the exception of three. Saskatchewan’s Bill 89 wasn’t studied because thefindings of lower courts on this issue were later reversed. New Brunswick’s Bill 11 failed in a free voteand was therefore not studied. Ontario’s first invocation of the clause (Bill 31) was studied due to itsnovelty, but the Province’s Bill 28 wasn’t studied because it was repealed within a matter of days. As96 Leeson, Section 33, The notwithstanding clause: A paper tiger?, 310.95 Bill Mah Edmonton journal, Opinion: It’s time to ditch Canada’s First-past-the-post voting system.27before, I traversed the different mediums that the elites would use to make their opinions known, and Inoted the major recurring themes in the theoretical table. To do this systematically, for each instance ofinvocation I first studied the hansard of each province for each of these instances, in addition to theofficial, government statements from relevant Ministers, Premier and media interviews. Again, I noticedthat major talking points and arguments were repeatedly expressed and those are the ones that werereflected in the theoretical table.6.2 Descriptive Analysis 26.2.1 Elite Discourse of the Drafters of the ConstitutionBecause official minutes of the drafting of the constitution were not kept, the best source for thistype of qualitative data is how these elites recounted their experience in later memoirs and writings, andalso Howard Leeson’s notes which attempted to keep minutes of these meetings for personal use. Thissection of the analysis looks at two groups of drafting elites separately. The first were all the firstministers involved in the main plenary where the constitution was discussed, and this is where Leeson’snotes and some writings by these first ministers would prove helpful. The second group are specificallymemoirs and writings of Jean Chretien, Roy McMurtry, and Roy Romanow. This group receives furtherstudy because not only do they represent the three different factions at the constitutional debates (thefederal government, supporters of the federal government, and the gang of eight), but they were also thethree elite who most directly contributed to the final package and its inclusion of the NWSC. This doessomewhat limit our analysis: We often don’t have complete dialogue of all stages of debate and privatemeetings, and memoirs written years later may be altered due to forgetfulness or social desirability bias ofwhat to include or how to frame the dialogue once the effects of the Charter are known. The greatest issuewith these publicly published memoirs is that the authors may have changed how they frame the debatesthat took place then, with the current understanding and expectations of the Charter to retroactively justifytheir debates.After an analysis of The Patriation Minutes the ideology of certain actors became very clear.Firstly, it is clear that the position of Premier Davis (Ontario) can be categorized as arestrictive-majoritarian outlook. This is clear from both the province’s actions and the Premier’s words. Interms of actions, prior to 1981 Ontario (along with New Brunswick) was supportive of Trudeau’sunilateral position on patriation not only of a Charter, but a Charter without an override.97 Ontario’s strongsupport of Trudeau’s original patriation package (going so far as to make supporting arguments in theSCC reference case on this topic) indicates that the government was satisfied in not having a legislativeoverride clause, and would have been supportive of the national unity consequences of the Charter.9898 Re: Resolution to amend the constitution; McMurtry, Memoirs and Reflections, 297.97 McMurtry, Memoirs and Reflections.28Logically therefore, if the province wanted the NWSC to serve its preferences it would rarely be used(evidenced by the fact that Ontario didn’t want one) and wouldn’t be used for federalism purposes. A‘federal’ usage of the charter indicates that the worry isn’t about a misjudgment but a rejection of nationalvalues, making it a much more significant use of the NWSC and therefore farther from Ontario’spreference.There is also direct evidence of this in Davis’s dialogue. When challenging Premier Lougheed ofAlberta on the entrenchment of common values, Davis claims that it is possible to “identify certain thingsas Canadian” and common through all provinces.99 This dialogue is best at showing Davis’s support forinstilling common national values, which evidenced by his hesitancy towards a non-obstante clause, hewouldn’t have wanted to be rejected. Leeson also notes that on the final day of negotiations Ontarioadvocated removing the NWSC from applying to fundamental freedoms.100 Compared to legal rights,fundamental freedoms are much more of a statement about the values of a nation which again indicatesthat Davis viewed the NWSC as a limited tool to be used for majoritarian purposes and not a rejection of‘Canadianness’.Additionally, it is clear that Alberta Premier Lougheed also took a restrictive position in regard tothe NWSC with concern for both federalism and majoritarian purposes. In the plenary of Premiers,Lougheed argued that with an entrenched Charter even if his own citizens express different preferencesfor rights, Albertans “can’t [express it] because the rights that Ontario want[ed] would be forced onAlberta.”101 He tries to make this point distinct from purely individual rights as he points out that heinstituted an Albertan “Bill of Rights” and simply doesn’t want Canada to impose them.102 This is clearlya federalism argument against the Charter, or for an override clause. Lougheed is expressing theimportance of what he views as the primary political community’s differing preferences against thepan-Canadian community. However, Lougheed’s arguments go beyond just a federalism argument toinclude a democratic need for the NWSC as well. Firstly, his worries about what he later termed the“public policy [dictation]” of un-elected judges is clear since he also included a non-obstante clause in hisown bill of rights.103 He also made the point of explaining that “in the area of fundamental freedoms,equality rights and legal rights…we need the safety valve of legislative action.”104 The fact that he wanteda NWSC not just for rights of value such as fundamental rights, but also for legalistic rights whichshouldn’t greatly change through jurisdictions, coupled with the fact that he even included it in aprovincial rights document indicates that he also thought there are legitimate majoritarian uses of the104 Leeson, The patriation minutes, 55.103 Lougheed, Why a notwithstanding clause?, 17.102 Ibid, 42.101 Ibid, 34.100 Leeson, The patriation minutes, 70.99 Leeson, The patriation minutes, 42.29NWSC beyond that of its federalism purposes. It is also noteworthy that in the plenary discussion aboutpatriation, the Premier spent a lot more time arguing his majoritarian points than federalism arguments.In his later writings on the issue, the Premier also adds that a preemptive use of section 33 isundemocratic, since the point of the clause is “ultimate supremacy of Parliament over the judiciary, notdomination over or exclusion of the judiciary’s role” which is why he was later even in favour ofrequiring a 60 percent vote before the clause can be invoked.105 This clearly shows that he thought theNWSC was to be used in extreme circumstances, hence why he was later even in favour of mechanicalbarriers to its use, but it also shows that his argument was a more democratic argument than aparliamentary supremacy argument. The way Lougheed seems to characterize parliamentary supremacyisn’t based purely on Bickel idea of countermajoritarian difficulty in that the judiciary is fundamentallyundemocratic, rather he voices a need for dialogue because the judiciary does have a role to play ininterpreting rights. A view of using the NWSC for dialogue is again much more restrictive than viewingthe judiciary as an unelected body and therefore not legitimate in restricting governments.It is surprising to find that Jean Chretien, federal Justice Minister at the time, was actually infavour of the inclusion of an override clause. As he explained, he didn’t agree with Trudeau on that issuebecause he thinks that “in a democracy the people elected should have a way to overrule the abuses ofjudges” to avoid the experience of judicial review as practiced in the United States.106 Even though hesupports a NWSC, from his argument it is clear that he supports it in the most restrictive sense ofpreventing judicial activism as opposed to other disagreements. Additionally, as a federal politician hecertainly didn’t want it to be used for federalism purposes. The Ontario Attorney General, Roy McMurtry,also espouses a restrictive, majoritarian outlook on the inclusion of the clause. In his memoirs he explainsthat Ontario “supported the idea of a charter of rights that applied equally throughout the country” (thussupporting the Charter’s unity purposes) and only viewed the NWSC as an “honourable compromise” toreach agreement.107 Even so, he believed that the NWSC “would be rarely, if ever, used because thepolitical pressure against its use would be so great,” further supporting the view that Ontario thought theNWSC clause would have a restrictive dimension to its use.108 Romanow’s recounting of the negotiationshighlights Blakeney’s concerns about collective rights. He explains that Blakeney’s advocacy around theoverride clause was because of a worry of the American experience with judicial review, which is why heeven wanted the NWSC to apply to section 28 dealing with equality of the sexes. Blakeney thought thatcourts would interpret that section as a way to “thwart affirmative action programs for women.”109 It109 Romanow et al., Canada. Notwithstanding: The Making of the Constitution, 1976-1982, 213.108 McMurtry, Interview with the Honourable Roy McMurtry, 157.107 McMurtry, Memoirs and Reflections, 311, 315.106 TVO, The three amigos of the constitution, 4:30.105 Lougheed, Why a notwithstanding clause?, 18.30seems that for most of the Premiers, their concerns arose out of the American experience. Chretien notesthat most who were against the Charter thought that it would lead to “governance by judges” andMcMurtry noted the frequent pointing to the American courts who had previously “blocked badly neededreform legislation in the areas of worker protection and child labour.”110 If this is truly the underlyingconcern of most Premiers at the time, then it would suggest that unless the court goes overboard, thePremiers would have expected a restricted usage of the NWSC.6.2.2 Elite Discourse of the Current Uses of the Notwithstanding clauseThe current uses of the NWSC in Ontario suggest that Premier Ford believes in a permissive,majoritarian function of the provision. Both Bills 31 and 307 indicate this. When Premier Ford waschallenged as to why he would invoke the NWSC in 2018, he argued that the issue was “about protectingdemocracy [and] protecting the 2.3 million people that voted for [his] government.”111 He adds to thisstatement by saying that “[his Progressive Conservative party candidates] were pretty clear about runninggovernment efficiently” when it came to cutting the size of Toronto City council.112 This implicitlysuggests that he has a mandate to impose this policy even if a judge declares it unconstitutional. Both ofthese arguments suggest a permissive understanding of the override clause: this understanding of theCharter implies that anytime a candidate is elected they have a mandate which they can implementwithout due regard for the Charter. This would allow for many more uses of the NWSC than the originalunderstanding that it would only be used when there is a misjudgement. Government house leaderCalandra also made a similar justification in regard to Bill 307 when he explained that “this is what theparliament of Ontario decided on.”113 By ‘this’ the house leader meant reconvening parliament to quicklyrepass a bill that would restrict election advertising up to 12 months before an election, something thatmany groups denounced as undemocratic and the court found violated freedom of speech. Yet, that isagain a justification that because the government was elected it can circumvent the courts if it sochooses–both those reasonings are clearly more permissive than what the drafters envisioned. Forexample, this is much more permissive than Chretien’s understanding. For Chretien, the NWSC serves asa final say on how to interpret the Charter, but not to abandon Charter values. Conversely, Ford views theNWSC as allowing legislatures to overrule the Charter because they are elected, not simply to have a sayon the Charter’s interpretive direction.However, it does seem that Ontario is using the clause for majoritarian uses as opposed tofederalism purposes. Unlike the suggestion of Hiebert that federalism purposes are those that aim topreserve the community, Ontario’s uses seem to be political. Shrinking the size of Toronto city council or113 CTV, Why is Ont. Premier Doug Ford invoking the rarely-used notwithstanding clause?, 5:13.112 Ibid, 2:44.111 CTV, Ford explains why he’ll use the notwithstanding clause to shrink Toronto city council,1:22.110 Chretien, My stories, my times, Volume 2, 200; McMurtry, Memoirs and Reflections 310.31limiting advertising that might hinder the government’s election chances are majoritarian choices ratherthan an expression of provincial identity. The political nature of these uses is further cleared when inParliament, the Ontario house leader argued that the government is “ensuring elections are fair” andcondemned what he saw as Quebec taking rights away through bill 21 which would be classified as afederalism use of the NWSC.114Statements by Quebec Premier Legault have further cemented the idea that his uses of theoverride clause have been for federalism purposes, and he also made a similar permissibility argument asPremier Ford. In regard to both Bill 21 and Bill 96 Legault made arguments about Quebec’s unique placein Canada. In regard to Bill 96 he argued that the NWSC invoking legislation was needed because “iftomorrow we say Montreal is bilingual, it will be a matter of time before everybody [switches] toEnglish.”115 In regard to Bill 21, Legault argues that “the vast majority of Quebecers agree” that religioussymbols should be banned for those in a position of authority and even goes so far as to say that because itonly applies in Quebec “it's not [Canada’s] business.”116 The Premier’s justification of these two measuresare clearly federalism purposes. Both are trying to insulate the French language and Quebec identity,which falls in line with the Hiebert criteria. The fact that the Premier makes it explicit that the rest ofCanada has no business interfering, only serves to reinforce that this is about a Quebec identity questionrather than a simple political question. Nonetheless, because of the frequent use of the clause specificallyin Quebec, and the fact that Quebecers do have some differing values than the rest of Canada it seems thatthe Premier suggests that anytime the Quebec majority supports a policy it might be justified to use theclause. This is slightly different and more permissive than those like Premier Lougheed. Lougheed wasstill willing to show deference to the courts even in some instances where the majority disagreed with acourt decision because he was not nearly as concerned with preserving Albertan provincial identity (whothrough him were reflected in the ultimate compromise of the Charter) as Quebec would be.Premier Moe of Saskatchewan seems to view the NWSC through a permissive, federalism lens.He was clear in saying that the NWSC is a tool that “duly elected governments can [use to] represent theirconstituents when necessary.”117 As previously mentioned, this type of framing is characteristic ofovercoming the countermajoritarian difficulty which is a permissive justification of the clause. Thispermissiveness is again evidenced by government statements that justify the clause’s use. Statementssuggesting that the NWSC “will permit the legislation to operate without interruption,” imply that thegovernment doesn’t want to have dialogue on what a reasonable limit on gender expression is, but rather117 Taylor, Saskatchewan considers using notwithstanding clause to keep school pronoun policy change.116 Montreal Gazette, ‘It’s not your business’: Bill 21 doesn’t apply in the rest of Canada, Legualt says 0:38/0:50.115 Montreal Gazette, Facing lawsuits and criticism, Legualt defends Bill 96, 0:54.114 Legislative assembly of Ontario Hansard transcript, June 14, 2021.32cares about not being challenged in court thus, being a permissive exercise of the clause.118 The mostunique aspect about this invocation however is the fact that it co-opts Allan Blakeney’s justification forthe clause. Premier Moe directly uses Blakeney’s arguments about collective rights when he says thatduring Charter negotiations “there were other rights that were identified…and it was…identified that inthe future there could be a collision of these Charter protected rights with other rights.”119 This is clearly areference to Blakeney’s vision of the NWSC balancing individual rights and collective rights. However,instead of Blakeney’s vision of these collective rights being of a democratic nature such as the rights tostrike, Premier Moe has expanded that understanding to a collective, federalism rights understanding.Although political statements try to frame the collective right that is being protected here as parentalrights, this is more likely a community rejection of integration of trans rights in Saskatchewan.120 As perHiebert's criteria, this legislation tries to regulate an area of provincial legislation and attempts to expresscommunity beliefs about who should be accepted in the community. T3 will test to see if this difference inattitudes for transgender individuals exists between Saskatchewan and the rest of Canada, and if it does itdemonstrates that Premier Moe is mechanizing the NWSC as a way of expressing the ‘collective rights’of parents and Saskatchewan residents in a federal manner.6.3 Discussion of Results 2Theory two seems to be supported in that the drafters of the 1982 constitution had an expectationthat the NWSC would be used restrictively and for the most part on majoritarian grounds. It is now clearthat there has been a shift in elite discourse with the present day legislators having more permissiveunderstandings of the NWSC and more willing to use it for federalism purposes as opposed to only formajoritarian challenges. It would be fair to say that the primary concern of the drafters of the Constitutionwas not knowing how courts would interpret the Charter. The drafters agreed on the principles of Charterrights, but were worried about how courts would interpret competing rights or what reasonable limitsparliament could place on citizens. This understanding suggests a restrictive view of the NWSC to correctthe jurisprudence to be in line with the Charter. Current understanding of the clause has taken a drasticshift to be more permissive. Current legislators seem to often use the clause not because they don’t knowhow the jurisprudence will evolve, but because their legislation often goes against the principles of theCharter itself.Although an analysis of the 1981 negotiations suggests that there was some talk of the federalismimplications of entrenched, nation rights–primarily through Premier Lougheed–the main focus seems tobe transfer of some parliamentary sovereignty to the courts indicating that the main concerns around the120 Government of Saskatchewan, ‘Parent’s Bill of Rights’ introduced in legislature.119 Global News, Saskatchewan premier defends plan to use notwithstanding clause to pass gender pronoun policy,0:29.118 Government of Saskatchewan, ‘Parent’s Bill of Rights’ Passed and Enshrined in Legislation.33Charter were its majoritarian implications. The NWSC was meant to remedy that portion of concerns.Although Quebec has always used the NWSC for federalism purposes, it seems now that more provincesare using the NWSC as a tool to express their provincial identities. The combination of these twodevelopments has led to a shift in elite attitudes that should correspond to increasing use of the clause andfor a wider array of purposes. Figure 8 provides a summary of the discourse shift on the theoretical table.[FIGURE 8]7 Theory 37.1 Methodology 3Theory three is a direct response to thinking about the Charter as an attempt to impose apan-Canadian identity and values, with the NWSC serving as an instrument to allow provinces to pursuetheir regional, societal preferences in spite of this imposition. This paper identified four instances, since2000, where the clause was passed through legislatures for seemingly federal purposes, as defined byHiebert.121 It is also a test of the findings of T2; that theory found that politicians are expressingfederalism purposes for using the clause, and this test is a check to see if these statements actually playout in public opinion. These uses of the clause are the most clear attempts at shaping culture in eachjurisdiction, as opposed to solely different interpretations of judicial rulings. Alongside the previouslymentioned Bill 21, Bill 96, Bill 137 and Alberta and New Brunswick’s recent flirtations with the clause,Alberta’s use in 2000 (Bill 202) which attempted to reserve the definition of marriage for same sexcouples before failing on jurisdictional grounds will be examined.The CES is used to measure the difference in public opinions on these uses of the clause betweenthe provinces. For each use, the CES immediately preceding the invocation of the clause is studied. Thisis because of my assumption that the political elite are responding to the existing political opinions intheir province, so that they can electorally appeal to them and win elections. The CES for each variable isalso stratified by province rather than cultural regions, as identified by Wiseman, because although thisincreases the margin of error, our assumption is that provincial elites work independently and respond totheir voters rather than a preexisting sociological culture in their region. Using the 2000, 2015, and 2021CESs a dataset was created containing multiple variables that best capture public opinion on the policygoals that the identified future legislation tries to respond to. In addition to the unit of analysis ofindividual provinces, a unique stratification is also created (ie. rest of Canada) that measures the averageopinion on each variable when taking out the offending province’s use; this would best highlight how aprovincial preference would clash with the broader pan-Canadian culture outside of those borders.Ultimately, the independent variables are the provinces, and the dependent variables are the measurementsof each provinces’ tolerance for the impacted minority group.121 Hiebert, Notwithstanding the Charter.347.2 Descriptive Analysis 3The first instance of invocation that was studied was Alberta’s Bill 202, in 2000 under theconservative Ralph Klein government. Because this legislation attempted to restrict homosexualmarriages, two variables that directly and indirectly measure the concept of tolerance for gay marriageswere measured. The first question was a direct question of whether gays and lesbians should be allowedto get married; this is a valid measure since it directly captures the bill’s intent and because the novelty ofthe problem at the time isn’t susceptible to social desirability biases. Further, because I am looking foreach province’s tolerance in conjunction with the others, even if this bias existed, theoretically differentlevels of bias would exist for each province. To check the first measure, I also highlighted the question ofwhether respondents believe there would be less problems if there was more emphasis on traditionalfamily values. This question also captures toleration for homosexual marriages, as the biggest ‘attack’ onthe concept of a traditional family would have been the contemporary discussions about expandingmarriages. Both variables were measured on an ordinal scale from strongly agree to strongly disagree.Figure 9Summary table: Bill 202, Marriage Amendment ActAlberta Rest of CanadaQ1: Gays and Lesbians should be allowed to get marriedStrongly agree 16.05% 23.38%Somewhat agree 29.77% 31.63%Somewhat disagree 11.04% 12.24%Strongly disagree 43.14% 32.75%Q2: This Country would have many fewer problems if there were more emphasis on traditional family valuesStrongly agree 30.67% 28.89%Agree 51.33% 44.76%Disagree 14.67% 20.65%Strongly disagree 3.33% 5.70%Notes: For all provinces refer to the appendices section.On the support for gay marriages it is clear that the ‘rest of Canada’ (ROC) supports theirrecognition (55%) while only only 46% of Albertans support the cause. More importantly, this 9%difference in support is concentrated amongst the most anti-gay marriage Albertans. This makes sensesince amongst all provinces Albertans are the most likely to most strongly oppose gay marriages. On the35question of traditional family values there is almost an 8% difference between Albertans who supportsuch values and the ROC, but variation on this variable is greater amongst provinces.The next instance that was studied was Quebec’s Bill 21 using the 2015 CES. There was a focushere on muslims in particular as some scholars suggest that Muslim women are the group most impactedby this policy.122 The first question that was measured was a dichotomous variable asking whether Canadashould ban muslim women from covering their faces in public like some other countries. Although thisvariable focuses on muslim women, it does most directly capture the concept of abandoning publicdisplays of religion, as intended by Bill 21. One bias that this variable holds is that in 2015, due toactivities by ISIS and a similar but softer ban proposal by PM Harper, Canadians would have been moreprimed to support greater restrictions on muslims generally. A second variable that was measured asksrespondents to rate how they feel about muslims living here on a continuous 0-100 scale; this variablealso presents similar biases, yet still captures our concept. To standardize this measure with the othervariables, I coded the continuous ratings of respondents into 5 categories with category 3 serving as anambivalence measure (a score of 50).Figure 10Summary table: Bill 21, Act to Respect the Laicity of the StateQuebec Rest of CanadaQ1: Some countries have banned muslim women from covering their faces in public. Should Canada?Yes (Favour the ban) 83.02% 59.41%No (Oppose the ban) 16.98% 40.59%Q2: How do you feel about Muslims living here?1 (0-24) 33.03% 18.78%2 (25-49) 19.91% 14.08%3 (50) 8.45% 13.49%4 (51-75) 20.36% 22.80%5 (76-100) 18.25% 30.85%Notes: For all provinces refer to the appendices section.In terms of a niqab ban, Quebecers are 24% more likely to support such a ban than the ROC andstill 13% more than the next closest province (although the sample size on PEI is very small). Quebecersare also the most likely to have the strongest negative feelings towards muslims with a third of them122 Bodnaruk, Muslim women most impacted by Quebec’s secularism laws.36rating them between 0-24, which is 14% higher than the ROC and 9% higher than the next closestprovince in Saskatchewan.To measure Quebec’s most recent use of the clause in Bill 96 one dichotomous and one ordinalvariable were chosen that capture respondents' beliefs about and sensitivity to their language; Bill 96 aimsto preserve French in the province. The 2021 CES was used for these measurements. The dichotomousvariable asks whether the French language is threatened in Quebec, while the ordinal variable asksrespondents to categorize the importance of language to their identity from not very important at all tovery important. The dichotomous variable does provide some limitations in that it points to a specificprovince; regrettably, those are the only variables that measure language concerns. Even so, because mostCanadians associate language issues with Quebec, it is still a good measure to see if the broad Canadianpublic is as concerned about French as Quebecers would be. The ‘importance of language’ questionprovides more validity as it also captures whether respondents would support similar language policies intheir province, whereas the dichotomous question that asks about French in Quebec restricts that part ofthe measure.Figure 11Summary table: Bill 96, Act Respecting French, the Official and Common Language ofQuebecQuebec Rest of CanadaQ1: Importance of language to your identityNot important at all 1.96% 5.34%Not very important 5.86% 14.75%Fairly important 22.26% 33.41%Very important 69.92% 46.50%Q2: Is the French language threatened in Quebec?Yes 70.74% 9.86%No 29.26% 90.14%Notes: For all provinces refer to the appendices section.The difference in beliefs is again shown to be strongest on questions surrounding Quebec. Whileonly 10% of the rest of Canadians believe French is threatened in Quebec, 71% of Quebecers believedthis to be the case. 19% of New Brunswickers believed the same, which is likely due to that provincebeing the only officially bilingual province in Canada. On the question of the importance of language toidentity, again 70% of Quebecers indicated that this was very important to them, yet only 47% of ROC37said the same. Even in New Brunswick with its large minority francophone population there was adifference of 16 percentage points.Lastly, the 2021 CES is used again to measure Saskatchewan’s restrictions on transgenderindividuals and Alberta and New Brunswick’s deliberations on this issue two ordinal variables wereincluded. The first asks respondents to categorise their answer from much more to much less on thequestion of how much should be done for gays and lesbians. This is a good measure for how muchaccommodation in society respondents are willing to make. The only problem with this measure is that itspecifies ‘gays and lesbians’ as opposed to transgender individuals, but some inferences to the2SLGBTQ+ broader community can be made based on these questions. This is especially true when it's aquestion of broad accommodation for the community. The second question asks how strongly respondentsagree that newer lifestyles are contributing to the breakdown of society. Because of the prominence oftransgender rights and pronoun politics, ‘newer lifestyles’ does capture gender fluidity in the 2021 surveyand this question would indirectly measure tolerance for gender fluid individuals.Figure 12Summary table: Various Restrictive Transgender Policies Across CanadaNew Brunswick Saskatchewan Alberta Rest of CanadaQ1: How much do you think should be done for gays and lesbians?Much more 10.00% 10.99% 11.60% 14.69%Somewhat more 27.24% 24.11% 20.31% 24.55%About the same asnow49.66% 41.13% 45.91% 47.31%Somewhat less 5.86% 11.35% 12.12% 6.90%Much less 7.24% 12.41% 10.06% 6.55%Q2: Newer lifestyles are contributing to a breakdown of our societyStrongly disagree 10.88% 17.09% 15.91% 13.50%Somewhat disagree 12.98% 15.27% 15.09% 16.57%Neither agree nordisagree26.67% 20.00% 25.20% 25.57%Somewhat agree 37.89% 31.64% 32.63% 32.04%Strongly agree 11.58% 16.00% 11.17% 12.32%Notes: For all provinces refer to the appendices section.38In terms of accommodations for gays and lesbians only 13.4% of ROC want to be lessaccommodating, while the only provinces who have more than a fifth of their population indicatingwanting to be less accommodating are Alberta (22%), Saskatchewan (24%), and PEI (24%). In line withthe ROC only 13% in New Brunswick wanted to be less accommodating. Once Manitoba is taken out(19% want to be less accommodating), all other provinces are very close to the ROC. On the question ofnew lifestyles, once PEI which is an anomaly is taken out, all provinces range from 41-48 percent interms of agreeing that newer lifestyles are bad, with the ROC being 42% on this measure.7.3 Discussion of Results 3H3 seems to be supported. In all the cases that were studied there is evidence that there is a higherlevel of support for the intentions of future bills in the province that invokes the NWSC as opposed to thebroader Canadian public. Because of prior evidence and literature that identified that the Charter wasmeant to create national unity through values, and that the elite that ultimately included the overrideclause didn’t so so with the intention of using it to opt-out of questions of value, this change in thepurpose of using the clause would explain why there is now a rise in the clause’s use. As previouslypointed out (T2), political elites have vocalized that they now view the clause as a way of asserting theirregional identity within the federation. This theory (T3) provides further evidence to that idea, by showingthat in the instances that current elite do use the clause it really has been for asserting their regional valuesagainst the pan-Canadian culture of values. This wasn’t a purpose that the drafting elite envisioned(Chretien, Romanow, and McMurty), yet the new provincial elite have taken on this innovative type offederalism invocation. T3 has simply supported T2 by demonstrating that in fact in many of the currentinstances when the clause has been invoked, it has been used on the basis that the held beliefs in thatprovince are different than the ROC and the NWSC is vocalizing that difference.Given the theories about elite-driven identity building by Cairns and Wiseman, if the provincialelite are latching on to their regional differences and expressing those differences through the use of sec.33, it would suggest that those policies would also contribute to greater differentiation from thepan-Canadian identity over time. As more CES data becomes available, future scholars should test to seeif this dimension of a federalism use of the clause does indeed exist.The cases involving Quebec are the strongest in showing the NWSC being used to vocalizedifferentiation in the federation, and also support the arguments about Quebec exceptionalism. Priorliterature indicated that Quebec had previously used the clause because of the province’s belief about itsexceptionality in the federation, so it is not entirely surprising that the clause’s recent uses in the provinceare again shown to be a vocalization of their regional beliefs and cultures against the broader culture.What is notable is that as Quebec has continued to use the clause for federalism purposes, and that39Quebec’s usage might have inspired other actors (notably Alberta in 2000 and Saskatchewan in 2023) toalso use the clause in this unintended way.However, this differentiation in support amongst the provinces seems to be a necessary, but not asufficient condition for the province to invoke the clause. For all the cases there is differentiation intolerance amongst the provinces that invoke the clause yet, other than the unique cases for Quebec, thisdifferentiation from the ROC isn’t always concentrated in the one province. Particularly in 2021, about aquarter of PEI residents thought less should be done for gays and lesbians, and 63% believed newerlifestyles were damaging society. More data on the island is needed, but it does suggest that differentiationin beliefs from the pan-Canadian culture of values doesn’t always lead to the use of the clause, but it isalways present when it is used. This could also explain why New Brunswick had challenges with policy713; cabinet ministers resigning when the policy was introduced. New Brunswick didn’t have a culturemuch different from the rest of Canada, and so it is possible that cabinet ministers weren’t comfortableusing the clause for the premier’s personal preferences over the province’s. Some scholars suggest thatconservative politicians are more willing to use the clause and that could indicate discrepancies about whysome provinces with high differentiation haven’t used the provision; it is a necessary condition, but otherfactors need to also be met for it to be invoked.123There exists one major caveat to the finding that provincial leaders outside Quebec are using theclause for seemingly federalism purposes. Non-Quebec elites could be using the language of adhering tothe principle of federalism, when they are actually expressing partisan differences rather than provincialdifferences. As seen in Figure 13, both instances of Quebec’s current uses of the NWSC have over 60%support province wide. This is a 7 and 9% higher level of support in Quebec than Saskatchewan’s use,indicating that when Quebec uses the clause there is a greater preference for the policy than inSaskatchewan’s case. More importantly, the mandate of the ruling party in Quebec was less than 38% yettheir uses had almost 25% and 27% more support than the party itself. This indicates that the preferencefor the policy wasn’t a partisan issue and cut across Quebec society while still gaining large support. InSasktchewan’s case, not only did their use of the clause have less support generally, but it actually hadless support than the party that proposed the invocation by almost 6%. This would suggest that becausethere are real differences between Quebec and the rest of Canada (also supported in T3 between the largerpreference difference in cases involving Quebec), the government feels obliged to invoke the clause. Yet,outside of Quebec, the possibility is open that although slight provincial differences may exist, the rulingparty is actually appeasing their base of support rather than the province. If the government was using the123 Lawlor and Crandall, The Canadian Charter’s notwithstanding clause as an institutional mechanism of courtcurbing.40clause for a province wide federalism issue, we would expect support beyond the ruling party’s level ofsupport.Figure 13Bipartisan support for NWSC invoking legislation in relevant provincesQuebec SaskatchewanBill 21 Bill 96 Bill 137Support for the legislation 64% 62% 55%Coalition Avenir Québec Saskatchewan PartyPercentage of votes won by thegoverning party in previous election37.42% 60.67%Notes: This data was collected from the Angus Reid institute and the elections agency of each province.124There is now a normatively concerning implication that the NWSC will lead to greaterdecentralization. Majoritarian uses of the NWSC don’t deviate from the broader pan-Canadian identity;theoretically we can think that if a wrong mis-judgment has been put forth by the court, all regions ofCanada and the federal government would try to remedy the situation and would move in lockstep. Yet, ifit is becoming increasingly normalized to use the clause not because there is a question of the legality of abill, but rather because provincial leaders are competing for regional loyalties by expressing differentprovincial preferences than those within the bounds of the Charter, then this will lead to decentralization.Clearly, Pierre Trudeau’s aim of national unity by entrenching Canadian values is chipped away ateverytime the NWSC is used when provinces reject the pan-Canadian belief for the regional belief. If theclause is used in such a manner, it will lead to greater decentralization.8 ConclusionThis project has attempted to explain why there has been a rise in the use of the notwithstandingclause, particularly outside of Quebec. I have taken the unique lens of trying to explain this rise throughelite beliefs about the clause and particularly the federalism purpose that it could serve.Three different theories were studied to attempt to paint a complete picture of the overrideprovision’s development in Canada. Firstly, theory one was presented and tested to see if the Canadianpublic has lost trust in the court system or has become less liberal in its attitudes. The result was that sincethe 1980s, Canadians are significantly more likely to support Court adjudication of Charter disputes over124 Angus reid, Quebecers support religious symbols ban, but are divided on how-or even whether-to enforce it;Angus reid, Saskatchewan: Majority support government’s gender and pronoun policy but half also say exceptionsneeded; Angus reid, Divergent bilingualism, linguistic anxieties, and Bill 96; 2020 Saskatchewan election results;Élections Québec.41politicians and have become more sensitive to minority rights in this timeframe. One thing to note is thatin the most recent years trust in the federal government has fallen and the gap in confidence betweencourts and politicians has shrunk. Next, the discourse of elite on their understanding of the Charter and theNWSC’s implication in 1981 were compared to current justifications of using the NWSC and it was foundthat current elite have a much more permissive outlook on the clause and are now increasingly using it forfederalism purposes, which was previously only limited to Quebec. Lastly, as a way of checking theprevious finding that elites feel justified in using the clause for federalism purposes, a quantitative studywas conducted that indeed showed that often when the clause is invoked it is because of uniquepreferences in a particular province.The normative implications of this study are important for students of Canadian politics. If it isindeed true that elites increasingly feel justified in using the clause, and especially for federalism purposesthen this will lead to a mosaic of values across the country. As scholars point out, the Charter is meant tounify the country around common, basic values; if provinces will routinely invoke the NWSC to opt-outof the pan-Canadian identity, this could lead to a dilution of the Charter’s national unity aims. Futurescholars should test whether a use of the NWSC for federalism purposes does indeed reinforcedecentralization in the province. As more data becomes available, future scholarship should study whetheran invocation of the NWSC alters public opinion on that policy question in the province that used theclause as opposed to the rest of Canada. If this were to be the case, then it would become clear theprovincial leaders are using the NWSC and the Charter to ‘build’ provincial identities, as suggested byCairns.Although there is an increasing usage of the clause, the actual amount of usage is still relativelylow. Future scholars should continue to add to this study as more cases of notwithstanding arise. The mainlimitations of this study were limited public opinion data that could directly relate to the legislation thatuses the clause, limited primary data on elite discourse, and the possibility that the statements publishedby political elite may be biased. If the use of the clause does indeed become more habitual going forward,more interviews with political elite and public opinion data relating to this phenomena are warranted tocreate more complete models.42Appendices[FIGURE 1]Province Year Bill Type of usage StatusQuebec 1982-1987All Acts(used as a form of protest; applied to allexisting and new bills)Protest Passed andexpiredSaskatchewan1986 An Act to Provide for Settlement of CertainLabour-Management disputes between theGovernment of Saskatchewan and theSaskatchewan Governments’ EmployeesUnion, s. 9Pre-emptive Passed andexpired in1992Quebec 1988 An Act to Amend the Charter of the FrenchLanguageReactive Passed andrepealed in1993Alberta 2000 Bill 202, Marriage Amendment Act Reactive Passed-Declared UltraVires ongrounds offederalismSaskatchewan2018 Bill 89, School Choice Protection Act Reactive PassedOntario 2018 Bill 31, Efficient Local Government Act Reactive Removedfrom orderpaperQuebec 2019 Bill 21, Act toRespect the Laicity of the StatePre-emptive PassedNewBrunswick2019 Bill 11, Act Respecting Proof ofImmunizationPre-emptive Defeated in afree voteOntario 2021 Bill 307, An Act to amend the ElectionFinances ActReactive PassedQuebec 2022 Bill 96, Act respecting French, the officialand common language of QuébecPre-emptive PassedOntario 2022 Bill 28, Keeping Students in Class Act,2022Pre-emptive Passed/RepealedSaskatchewan2023 Bill 137, The Education (Parent’s Bill ofRights) Amendment Act, 2023In response to a courtinjunctionPassed43[FIGURE 2][FIGURE 3]44[FIGURE 4][FIGURE 5]45[FIGURE 6][FIGURE 8]46[FIGURE 9]Gays and lesbians should beallowed to get married[Canada] would have…fewerproblems if there were moreemphasis on traditional fam.values[FIGURE 10]Some Countries havebanned muslim womenfrom covering theirfaces in public. ShoulCanada?How do you feel aboutmuslims living here?[FIGURE 11]Importance oflanguage to youridentity?Is the French languagethreatened in Quebec[FIGURE 12]How much do youthink should be donefor gays and lesbians?Are newer lifestylescontributing to abreakdown of oursociety?47References“Alberta Seeks Intervener Status in Sask. Court Case over Controversial Pronoun Policy | CBCNews.” CBCnews, April 10, 2024.https://www.cbc.ca/news/canada/saskatchewan/alberta-seeks-intervener-status-court-case-pronoun-policy-1.7168700.Bickel, Alexander M. 1986. The Least Dangerous Branch: The Supreme Court at the bar ofpolitics. Yale University Press.Blakeney, Hon Allan E. "The Notwithstanding Clause, the Charter, and Canada's PatriatedConstitution: What I Thought we were Doing." Constitutional Forum / ForumConstitutionnel 19, no. 1, 2 & 3 (05/2012): 2010. doi:10.21991/C9KD4W.Bodnaruk, Candice. "Muslim Women Most Impacted by Quebec's Secularism Laws." TheWashington Report on Middle East Affairs 41, no. 4 (June 1, 2022): 48Cairns, Alan. "The Governments and Societies of Canadian Federalism." Canadian Journal ofPolitical Science / Revue Canadienne de Science Politique 10, no. 4 (1977): 695–725.http://www.jstor.org/stable/3230452.Cairns, Alan. Charter Versus Federalism: The Dilemmas of Constitutional Reform.McGill-Queen's University Press, 1992.Campbell, Kim, et al. Independent Advisory Board for Supreme Court of Canada JudicialAppointments, Report on 2017 Process. Independent Advisory Board for Supreme Courtof Canada Judicial Appointments, 2018, https://go.exlibris.link/qq7hfB40, Accessed 22Apr. 2024.CBC News. "Ontario Government Moves to Invoke notwithstanding Clause." Jun 10, 2021.YouTube. Accessed March 22, 2024.https://www.youtube.com/watch?v=DmBpFWEY4nk.CBC News. "Quebec’s Bill 21 Challenged in Court of Appeal." Nov 7, 2022. YouTube.https://www.youtube.com/watch?v=sMUK6teH1Bo.CBC News. "Quebec’s French Language Law Bill 96 Comes into Effect." YouTube.https://www.youtube.com/watch?v=nTFYc_FszBs.48CBC News. "Sask. Parental Bill of Rights Introduced, Invoking notwithstanding Clause." Oct12, 2023. YouTube. Accessed March 22, 2024.https://www.youtube.com/watch?v=Nn0SHdgLmyk.Chrétien, Jean. My stories, my times, volume 2. Knopf, Alfred A. / Knopf Doubleday Pub Group,2021.Crandall, Erin and Andrea Lawlor. "Public Support for Canadian Courts: Understanding theRoles of Institutional Trust and Partisanship." Canadian Journal of Law and Society 37,no. 1 (04, 2022): 91-112. doi:https://doi.org/10.1017/cls.2021.28.CTV News. “Ford Explains Why He’ll Use the notwithstanding Clause to Shrink Toronto CityCouncil.” Sep 10, 2018. Www.youtube.com. Accessed March 22, 2024.https://www.youtube.com/watch?v=QzEC8pvZXDI.CTV News. “Sweeping New Gender Identity Policy in Alberta.” Feb 1, 2024.www.youtube.com. Accessed March 22, 2024.https://www.youtube.com/watch?v=P-a-xcnqqjY.CTV. “Why Is Ont. Premier Doug Ford Invoking the Rarely-Used notwithstanding Clause?”YouTube, June 11, 2021. https://www.youtube.com/watch?v=ORsmPTO7UI0&t=92s.Fine, Sean. “The notwithstanding Clause Being Used by Saskatchewan, Explained.” The Globeand Mail, September 30, 2023.https://www.theglobeandmail.com/canada/article-what-is-the-notwithstanding-clause/.Fletcher, Joseph F., and Paul Howe. 2000. "Public Opinion and the Courts." *Choices* 6:30–56.Gagnon, Alain-G. Quebec: State and Society, Third Edition, edited by Alain-G. Gagnon. 2;3; ed.Toronto: University of Toronto Press. doi:10.3138/9781442602885.Global News. “Saskatchewan Premier Defends Plan to Use notwithstanding Clause to PassSchool Gender Pronoun Policy.” YouTube, September 29, 2023.https://www.youtube.com/watch?v=xRzqGPEFgzQ.Goodyear-Grant, Elizabeth, J. Scott Matthews, and Janet Hiebert. 2013. "The Courts/ParliamentTrade-Off: Canadian Attitudes on Judicial Influence in Public Policy." *Commonwealth& Comparative Politics* 51, no. 3: 377–97.Government of Canada. 1982. “Consolidated Federal Laws of Canada, the CONSTITUTIONACTS, 1867 to 1982.” Laws-Lois.justice.gc.ca. Government of Canada. 1982.https://laws-lois.justice.gc.ca/eng/Const/page-12.html.49Government of Saskatchewan. “'parents’ Bill of Rights’ Introduced in Legislature.” Governmentof Saskatchewan, October 12, 2023.https://www.saskatchewan.ca/government/news-and-media/2023/october/12/parents-bill-of-rights-introduced-in-legislature.Government of Saskatchewan. “‘parents’ Bill of Rights’ Passed and Enshrined in Legislation.”Government of Saskatchewan, October 20, 2023.https://www.saskatchewan.ca/government/news-and-media/2023/october/20/parents-bill-of-rights-passed-and-enshrined-in-legislation.Hansard “Legislative Assembly of Ontario.” Hansard Transcript 2021-Jun-14 | LegislativeAssembly of Ontario, June 14, 2021.https://www.ola.org/en/legislative-business/house-documents/parliament-42/session-1/2021-06-14/hansard#para787.Hausegger, Lori, and Troy Riddell. 2004. "The Changing Nature of Public Support for theSupreme Court of Canada." *Canadian Journal of Political Science/Revue Canadienne deScience Politique* 37, no. 1: 23–50.Hiebert, Janet L. 2002. Charter Conflicts. McGill-Queen’s Press - MQUP.Hiebert, Janet L. 2017. "The Notwithstanding Clause: Why Non-use Does Not NecessarilyEquate with Abiding by Judicial Norms." In The Oxford Handbook of the CanadianConstitution, edited by Patrick Macklem, Nathalie Des Rosiers, and Peter Oliver. OxfordUniversity Press.Hiebert, Janet L. 2019. "Notwithstanding the Charter: Does Section 33 AccommodateFederalism?" In Canada: The State of the Federation 2017, edited by ElizabethGoodyear-Grant and Kyle Hanniman. MQUP.“Higgs Won’t Rule out notwithstanding Clause for Addiction Treatment Bill | CBC News.”CBCnews, 2024.https://www.cbc.ca/news/canada/new-brunswick/higgs-notwithstanding-clause-addiction-treatment-bill-1.7161415.Hogg, Peter W., and Allison A. Thornton. 2001. "The Charter Dialogue between Courts andLegislatures." In Judicial Power and Canadian Democracy, edited by Paul Howe, andPeter H. Russell. Montreal: MQUP.50Holliday, Ian. “Quebecers Support Religious Symbols Ban, but Are Divided on How – or EvenWhether – to Enforce It.” Angus Reid Institute, 2023.https://angusreid.org/quebec-bill-21-religious-symbols/.“Home.” Canadian Election Study. Accessed March 30, 2024. http://www.ces-eec.ca/.Interview with the Honourable Roy McMurty. Ottawa Law Review 43, no. 1 (2011-2012):145-viii.John D. Whyte, "On Not Standing For Notwithstanding," Alberta Law Review 28, no. 2 (1990):347-357.Kahana, Tsvi. "The Notwithstanding Mechanism and Public Discussion: Lessons from theIgnored Practice of Section 33 of the Charter." Canadian Public Administration 44, no. 3(09/2001): 255-291. doi:10.1111/j.1754-7121.2001.tb00891.x.Kenneth,, McRoberts,. 1997. Misconceiving Canada Oxford University Press.Korzinski, David. “Divergent Bilingualism, Linguistic Anxieties, and Bill 96.” Angus ReidInstitute, 2022. https://angusreid.org/bilingualism-french-bill-96/#gsc.tab=0.Lawlor, Andrea and Erin Crandall. "The Canadian Charter’s Notwithstanding Clause as anInstitutionalized Mechanism of Court Curbing." The American Review of CanadianStudies 53, no. 1 (01/2023): 1-21. doi:10.1080/02722011.2023.2180954.Leeson, Howard. “Section 33, The notwithstanding clause: A paper tiger?” Judicial Power andCanadian Democracy 297-328. McGill-Queen's University Press, 03/29/2001.doi:10.1515/9780773568891-021.Leeson, Howard A, and Alberta. Centre. 2011. The Patriation Minutes. Edmonton: Centre ForConstitutional Studies, Faculty Of Law, University Of Alberta.Lougheed, Peter. 1998. "Why a Notwithstanding Clause? (Canadian Charter of Rights andFreedoms)." Constitutional Forum 9 (4): S1-S18."M. v. H." Supreme Court Judgments. May 20, 1999. Report [1999] 2 SCR 3, case number25838.MacPherson, C. B. Democracy in Alberta: Social Credit and the Party System. University ofToronto Press Inc, 04/01/1977.51McLachlin, Hon Beverley. 2001. "Courts, Legislatures and Executives in the Post-Charter Era."In Judicial Power and Canadian Democracy, edited by Paul Howe, and Peter H. Russell.Montreal: MQUP.McMurtry, R. Roy and Osgoode Society for Canadian Legal History. 2013. Memoirs andReflections. Toronto, ON, Canada: Published for The Osgoode Society for CanadianLegal History by University of Toronto Press.Montreal Gazette. “Facing Lawsuits and Criticism, Legault Defends Bill 96.” YouTube, June 9,2023. https://www.youtube.com/watch?v=ugfZVioJJ0k.Montreal Gazette. “‘It’s Not Your Business’: Bill 21 Doesn’t Apply in the Rest of Canada,Legault Says.” YouTube, September 10, 2021.https://www.youtube.com/watch?v=ESXcSZqhAUo.Morton, F. L. “The Effect of the Charter of Rights on Canadian Federalism.” Publius 25, no. 3(1995): 173–88. http://www.jstor.org/stable/3330693.Nicolaides, Eleni, and Dave Snow. 2021. “A Paper Tiger No More? The Media Portrayal of thenotwithstanding Clause in Saskatchewan and Ontario.” Canadian Journal of PoliticalScience 54 (1): 60–74. https://doi.org/10.1017/s0008423920000876. Rainer Knopff, and Frederick Lee Morton. 1992. Charter Politics. Scarborough, Ont.: NelsonCanada.Re: Resolution to amend the Constitution - SCC cases. Accessed March 30, 2024.https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2519/index.do.Reid, Angus. “Saskatchewan: Majority Support Government’s Gender & Pronoun Policy butHalf Also Say Exceptions Needed.” Angus Reid Institute, 2024.https://angusreid.org/saskatchewan-gender-pronoun-policy-moe/.“Results and Statistics.” Élections Québec, 2024.https://www.electionsquebec.qc.ca/en/results-and-statistics/.RJR-MacDonald Inc. v. Canada (attorney general) - SCC cases. Accessed March 30, 2024.https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1290/index.do.Romanow, Roy, John D. Whyte, and Howard Leeson. 1984. Canada. Notwithstanding: TheMaking of the Constitution, 1976-1982. Toronto: Carswell/Methuen.52Roach, Kent. The Supreme Court on Trial: Judicial Activism Or Democratic Dialogue (Revised).Irwin Law, 2016.Russell, Peter H. "The Political Purposes of the Canadian Charter of Rights and Freedoms."Canadian Bar Review 61, no. 1 (March 1983): 30-54.Russell, Peter H. Review of The political purposes of the Charter: Have they been fulfilled? AnAgnostic’s report card. In Protecting Rights and Freedoms: Essays on the Charter's Placein Canada's Political, Legal, and Intellectual Life, 22-44. University of Toronto Press,12/31/1994. doi:10.3138/9781442678859-005.Seymour Martin Lipset. 1974. Agrarian Socialism: The Cooperative Commonwealth Federationin Saskatchewan; a Study in Political Sociology. Berkeley: University Of CaliforniaPress.Smith, Miriam. 2020. Review of Federalism, Courts and LGBTQ Policy in Canada. InHandbook on Gender, Diversity and Federalism, 107–19. Cheltenham, UK: EdwardElgar Publishing.Sniderman, Paul M, Joseph F Fletcher, Peter H Russell, and Philip E Tetlock. 1997. The Clash ofRights: Liberty, Equality and Legitimacy in Pluralist Democracy. New Haven: YaleUniversity Press.Taylor, Stephanie. “Saskatchewan Considers Using notwithstanding Clause to Keep SchoolPronoun Policy Change.” The Globe and Mail, September 15, 2023.https://www.theglobeandmail.com/canada/article-saskatchewan-considers-using-notwithstanding-clause-to-keep-school/.TVO. “The Three Amigos of the Constitution.” YouTube, April 18, 2012.https://www.youtube.com/watch?v=-15a773nqnQ&t=6s.Turgeon, Luc, Antoine Bilodeau, Stephen E. White, and Ailsa Henderson. "A Tale of TwoLiberalisms? Attitudes Toward Minority Religious Symbols in Quebec and Canada."Canadian Journal of Political Science 52, no. 2 (06, 2019): 247-265.doi:https://doi.org/10.1017/S0008423918000999.Wiseman, Nelson. 2007. In Search of Canadian Political Culture. Vancouver: Ubc Press."Vriend v. Alberta." Supreme Court Judgments. April 2, 1998. Report [1998] 1 SCR 493, casenumber 25285."2020 General Election Results." Elections SK, 2020. https://results.elections.sk.ca/ge29/
Graduating Project
eng
Unreviewed
Vancouver : University of British Columbia Library
Attribution-NonCommercial-NoDerivatives 4.0 International
Undergraduate
University of British Columbia. POLI 492
A Typical Canadian Constitutional Story : The Mechanization of the Notwithstanding Clause as a Tool for Decentralization
Text