'Notwithstanding clause' more commonplace--even 'normalized'--and may be least-worst option to ensure legislative authority

VANCOUVER, BC, Oct. 30, 2025 /CNW/ - It's becoming more commonplace for provincial governments to consider and use the "notwithstanding clause," finds a new essay published today by the Fraser Institute, an independent, non-partisan Canadian public policy think-tank.

"Essentially, the notwithstanding clause has become more normalized as provincial governments see it as a legitimate option when governing," said Lydia Miljan, professor of political science at the University of Windsor, senior fellow at the Fraser Institute and author of Has the Notwithstanding Clause Become Less Controversial?

Moreover, media coverage and scrutiny of the notwithstanding clause differs depending on the province--for example, there's less scrutiny in newspapers of the Quebec government (which uses the clause more than any other province) compared to the Ontario government.

"Among newspapers in Canada, there's selective criticism of governments that use the notwithstanding clause," Miljan said.

A separate essay notes that the notwithstanding clause is the last vestige of legislative supremacy under Canada's Charter of Rights and Freedoms.

Since the introduction of the Charter in 1982, Canada's Supreme Court has been transforming its roster of individual freedoms into an instrument for progressive values and collective rights.

In response, provincial governments have increasingly used the clause (section 33 of the Charter) to assert their legislative authority and enact provincial laws that might otherwise be struck down by courts because they conflict with the judicial interpretation of certain Charter rights.

"The danger in our system of government is not legislative supremacy or judicial supremacy, but supremacy itself," said Bruce Pardy, professor of law at Queen's University, senior fellow at the Fraser Institute and author of Supremacy, Notwithstanding: In Canada, Who Protects Individual Liberties? Not Courts. Not Legislatures.

"Canadians face two bad choices--they can be ruled by courts empowered by the Charter or by legislatures armed with the notwithstanding clause," Pardy said.

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The Fraser Institute is an independent Canadian public policy research and educational organization with offices in Vancouver, Calgary, Toronto, and Montreal and ties to a global network of think-tanks in 87 countries. Its mission is to improve the quality of life for Canadians, their families and future generations by studying, measuring and broadly communicating the effects of government policies, entrepreneurship and choice on their well-being. To protect the Institute's independence, it does not accept grants from governments or contracts for research. Visit www.fraserinstitute.org

SOURCE The Fraser Institute

MEDIA CONTACTS: Lydia Miljan, Senior Fellow, Fraser Institute; Bruce Pardy, Senior Fellow, Fraser Institute; To arrange media interviews or for more information, please contact: Mark Hasiuk, Senior Media Relations Specialist, 604-688-0221 ext. 517, [email protected]