What the notwithstanding clause means and its use in Alberta | Daily Hive

What the notwithstanding clause means and how it's used in Alberta

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On Tuesday, the Alberta government invoked the notwithstanding clause to protect from legal action three bills aimed at transgender youth concerning schools, sex education, sports, and access to healthcare.

It’s the second time in the span of less than a month that the provincial government has used the measure, following the government’s use of the notwithstanding clause to order striking teachers back to work in late October.

So, what exactly is the notwithstanding clause, and what does it mean for Albertans?

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The notwithstanding clause, in section 33 of the Charter, allows legislatures to declare that “legislation operates notwithstanding sections 2 and 7-15 of the Charter.”

Essentially, it means that government legislation can override certain sections of the Charter of Rights and Freedoms. When it’s invoked and passed in the legislature, courts cannot strike it down even if those laws violate Charter rights.

The notwithstanding clause expires after five years, and after that, governments have to choose whether or not they’ll renew it.

The clause was adopted as a political compromise and was intended to be used only in “exceptionally rare circumstances” or as a last resort to balance power between the courts and elected governments.

Since 1982, the notwithstanding clause has appeared in Alberta legislation 27 times, with its use becoming more frequent starting in 2018, according to a study by the Fraser Institute. The federal government has never used it.

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In a statement, the Alberta government said the move is intended to protect the health and well-being of children and to strengthen the role of parents as a child’s primary caregiver.

“Children deserve the opportunity to grow into adulthood before making life-altering decisions about their gender and fertility,” said Premier Danielle Smith.

“By invoking the notwithstanding clause, we’re ensuring that laws safeguarding children’s health, education and safety cannot be undone – and that parents are fully involved in the major decisions affecting their children’s lives. That is what Albertans expect, and that is what this government will unapologetically defend.”

But human rights groups have argued that invoking the clause endangers transgender and gender-diverse Albertans and violates the spirit of the Canadian Charter of Rights and Freedoms.

“Transgender children deserve protection, and this pattern of overriding children’s rights is deeply alarming and sets dangerous precedents for all people in Canada. The Charter was never meant to be used as a political tool to single out and withdraw protection of vulnerable groups,” said Ketty Nivyabandi, secretary general of Amnesty International Canada’s English-speaking section.