As Canada’s Charter of Rights and Freedoms marks its 44th anniversary, concerns are mounting over what some legal experts describe as a “slow erosion” of its protections, driven by the increasing use of the notwithstanding clause.
Signed on April 17, 1982, by Queen Elizabeth II in the presence of then–prime minister Pierre Trudeau, the Charter has long been regarded as a cornerstone of Canadian democracy. But today, its strength is being questioned.
Canada’s Justice Minister Sean Fraser has raised serious concerns about provinces increasingly invoking Section 33 — the notwithstanding clause — to override Charter-protected rights.
“If the rights that we have written in the Charter are existing on paper, but not enjoyed in our communities, is the Charter worth the paper on which it’s written?” Fraser said, emphasizing the need to ensure those rights are actively upheld.
The notwithstanding clause allows federal, provincial, and territorial governments to temporarily bypass certain Charter rights — including freedom of expression, religion, and equality — for up to five years. While originally intended as a last-resort mechanism, its growing use has sparked debate across the country.
Fraser warned that governments are increasingly relying on the clause to pass laws that may violate fundamental rights, raising both legal and policy concerns. He said Ottawa is exploring ways to establish “guardrails” around its use, though he ruled out constitutional amendments for now.
A key moment in this debate is expected soon, as the Supreme Court of Canada prepares to rule on a landmark case involving Quebec’s use of the clause to shield its controversial secularism law, Bill 21, from legal challenges.
Legal scholars say waiting for that ruling may come at a cost. University of Ottawa law professor Errol Mendes warned that repeated reliance on the clause risks undermining the Charter itself.
“I’m really concerned that what we are seeing is a slow death of the Charter due to the excessive use of the notwithstanding clause,” Mendes said, urging the federal government to act sooner rather than later.
While Quebec has invoked the clause most frequently, other jurisdictions — including Saskatchewan, Alberta, Ontario, and Yukon — have also used it in recent years, signalling a broader shift in how governments approach constitutional limits.
Fraser indicated that Ottawa is considering legislative options, including a proposal from Senator Peter Harder to establish clearer conditions for the federal use of the clause. However, he emphasized that any next steps would likely follow guidance from the Supreme Court’s upcoming decision.
As the Charter enters its fifth decade, the debate over its durability — and the limits of government power — appears far from settled.
