"Mirror Show Me, What's the Difference?" Constitutional Amendment and the Notwithstanding Clause

by Richard Mailey

October 17, 2025 

---

Back in 2019, I published a paper called, “The Notwithstanding Clause and the New Populism,” in which I argued that the ongoing justifiability of the notwithstanding clause was contingent on aspects of Canada’s political culture that were at risk of erosion. On the way to this conclusion, I dismissed defences of the notwithstanding clause couched in terms of legislative supremacy, arguing, in part, that such defences create a tension between the notwithstanding clause and the amending formula. My argument, put simply, was that it would make little sense for the Constitution to embrace legislative supremacy vis-à-vis the operation of core aspects of Canada’s fundamental law at the same time as the amending formula places such core aspects beyond the reach of any one institutional majority. The point wasn’t to argue for any direct equivalence between section 33 and the amending formula (they clearly have distinct functions and effects), but to highlight the symbolic inconsistency that would flow from a sovereigntist reading of section 33, pitting that reading’s qualified embrace of “organ sovereignty”[1] against the amending formula’s qualified rejection of it.

For a while, I thought of this as something of a throwaway argument, but I’ve started thinking about it again recently in relation to the idea that Canadian governments could pass laws that limit or complicate access to their section 33 powers. No province has done this, of course, but some provinces (and indeed, the feds) have taken such steps vis-à-vis their powers to ratify constitutional amendments — powers that similarly involve an attempt to alter the effect of constitutional provisions, albeit with the proviso that amendment powers have the potential to alter the provisions themselves. This raises the question: why is it that Canadians have been generally accepting of attempts by their governments to cut off their own access to the seemingly fundamental power of ratifying constitutional amendments? And why, conversely, has there been no move to do the same with section 33?

The answer to the first question is relatively straightforward, I think. When governments have legislated to restrain themselves vis-à-vis the ratification of amendments, they have done so by enhancing the plausibly democratic character of constitutional amendment processes in various ways, which is to say that they aren’t just restraining themselves, but sharing their constitutional power in a way that has obvious public appeal. For example, BC’s Constitutional Amendment Approval Act requires the holding of a referendum on a proposed constitutional amendment before it is ratified by the legislature, thereby adding a layer of direct democratic oversight to what would otherwise be an elite-led process (Manitoba and Alberta passed similar laws around the same time, although Alberta has recently removed the requirement). Relatedly, the same power-sharing dynamic is at play, albeit with a very different point of emphasis, in the federal government’s regional veto law, which pluralizes the process of federal ratification by requiring that it flows from the consent of five “regions” of Canada, as defined by the law.

To state the obvious, this type of power-sharing is a double-edged sword. The advantage is that it captures powerful democratic intuitions vis-à-vis the need for deliberative, pluralistic decision-making, while the disadvantage is that it places an obstacle between constitutional actors and the powers that are, constitutionally, in their hands alone. Some scholars have suggested, in this regard, that the regional veto law goes too far and perhaps even shades into unconstitutionality, because it gives other actors — i.e. specific combinations of provincial governments — effective control over the federal government’s power to ratify constitutional amendments.[2] By contrast, referendum laws like BC’s have generally raised fewer hackles because they require a specific form of public consultation rather than consent, thereby keeping the ratification power, legally speaking, in the hands of the relevant legislature. In this sense, one can think of such acts of self-restraint in relation to the amending formula as existing along a continuum, running from consultation requirements (easier to justify) to consent requirements (harder). As ever, the name of the game is balance, in this case between the accessibility of constitutionally conferred power and the establishment of guardrails that promote meaningfully legitimate recourse to it. Great power yields great responsibility.

What has this got to do with the notwithstanding clause, though? My contention is that the layers of self-restraint — the acts of power sharing, if you prefer — that have been embraced or at least tolerated in relation to powers to propose and ratify constitutional amendments raise the question of why we haven’t seen similar moves with respect to the notwithstanding clause. This is all the more interesting when one considers the quite different effects that are set in motion by these two types of power. While you might assume that amending powers are “stronger,” given their capacity to alter constitutional texts rather than just suspending their operation, it’s also true that the most important exercises of these powers (generally) don’t have that text-altering effect themselves. On the contrary, ratifying a constitutional amendment, like Alberta did a few years ago in response to the affirmative vote in its equalization referendum, merely starts the clock on the three-year window for ratification of amendments under the general amending procedure, thereby hitting the ball into the courts of eleven other legislative bodies (two federal, nine provincial). This is itself an effect, of course, but it doesn’t alter constitutional text or practice, even if alterations of both are a foreseeable end product of a constitutional amendment initiative.

The same isn’t true of the notwithstanding clause, however. When a law that invokes the clause go into effect, that law itself changes (and indeed, reduces) the level of legal protection that is provided to individuals within the invoking jurisdiction. And yet, curiously, we haven’t seen any of Canada’s governments — federal, provincial, or territorial — take steps to share this power in the way that some of them have vis-à-vis their less directly consequential ratification powers. Why wouldn’t the same ideas that underpin things like provincial referendum laws have purchase in relation to section 33?

One answer is perhaps that the laws that effectively split or share ratification powers were products of a particular moment in time, when questions about the extra-constitutional dimensions of constitutional amendment processes were part of both nation-wide debates and specific initiatives like the Beaudoin-Edwards Committee — a federal committee on the amendment process that ultimately recommended the use of pre-ratification referenda, among other things. If this is true, though, it still doesn’t quite explain the neglect of questions about governmental access to section 33 powers, not least of all because we are clearly in the midst of a national debate over section 33, and we’re clearly living in a moment when people are hungry for a more direct role in political decision-making.

The truth, in this sense, probably has more to do with the different motivations of political actors, and the surrounding context of the push for democratizing the amendment process in the early 90s. With the failure of Meech Lake in the summer of 1990, there was evidently a sense among relevant actors — the Mulroney government in particular ­— that power had to be shared, and that the success of any future constitution-making venture would be contingent on the curation of a process that embraced, at least in appearance, an ethic of public inclusivity. Using the notwithstanding clause, by contrast, doesn’t come with an equivalent risk of failure. On the contrary, it is precisely because this is such a strong power — because its exercise doesn’t depend on the consent of any other body — that the success of its deployment is guaranteed by the mere fact of deployment. Of course, there is a risk of public backlash against the government, but that risk largely concerns the substance of the invocation rather than its democratic credentials, perhaps because of a sense that the use of the notwithstanding clause is already a step in the direction of democracy and against the rule of unelected elites (i.e. judges).

Whatever the historical or practical reasons for it, we should think carefully about whether our failure to embrace legislation that shares the notwithstanding power — i.e. legislation that subjects it to additional democratic checks — makes sense given our willingness to tolerate such power sharing in relation to constitutional amendment powers. This is especially so, I suggest, when one keeps in mind the direct and potentially life shattering consequences that flow from a deployment of section 33 powers, versus the less directly consequential thrust of constitutional amendment powers, which may or may not lead to a successful alteration of constitutional text and, hence, practice.

Ian Peach and I have made a version of this argument in several places, suggesting that provinces could consider the passage of legislation that requires the convening of citizen’s assemblies or juries that can deliberate on proposed uses of section 33 powers and issue non-binding recommendations to government.[3] Alternatively, provinces could pass laws requiring pre- or post-invocation referenda, or they could do something in the mould of Bill S-218, which was recently introduced by Senator Peter Harder in an effort to bolster the quality of public deliberation and awareness in relation to proposed federal invocations of section 33, including through a requirement that federal notwithstanding bills contain explanatory preambles, and a requirement that time limits are not placed on legislative consideration of such bills (I mention these requirements in particular because they strike me as the simplest and least contentious of the seven that are listed in the Bill).[4]

None of these options would be a silver bullet for dealing with overzealous invocations, of course, and all come with various pitfalls and problems. Their value, however, is that they promote the idea that the section 33 power, because of the immediate and potentially vast consequences that flow from it, should be hemmed in by more robust processes of democratic deliberation than it is at present. We’ve done this with powers of constitutional change; why wouldn’t we do it with powers that are being used, as we speak, to limit the life prospects of our fellow citizens? Shouldn’t we require the use of such powers to be preceded by more expansive and inclusive deliberative processes? And if we’re not willing to do this, what does that unwillingness suggest about our commitment, made explicit in section 1 of the Charter, to a free and democratic society, and to a broader ethic of proportionality as the litmus test for legitimate law?

***

Postscript

The day before this piece was published, Manitoba tabled Bill 50, which would require the Lieutenant Governor to refer proposed notwithstanding invocations to the Manitoba Court of Appeal. This is similar to one of the requirements included in Senator Harder's Bill S-218, and the fact that we now have two such bills under consideration suggests that the strange gap between limited constitutional amendment powers and unlimited notwithstanding powers may be in the process of narrowing.

[1] I borrow the term “organ sovereignty” from Andrew Arato, who defines it as the state of affairs that exists when “an individual, a group, an institution, and, in the most democratic versions, an assembly or a single electoral body in a referendum is said to incorporate all of the sovereign powers of what is said to be ‘the people’ on the ideological level”: Andrew Arato, The Adventures of the Constituent Power: Beyond Revolutions? (Cambridge: Cambridge University Press, 2017) at 35. The notwithstanding clause clearly doesn’t vest Parliament or legislatures with “all of the sovereign powers” of the people, but it does vest them with an important slice of sovereign power: namely, the power to declare a legal exception to certain parts of Canadian Charter law. Hence why I describe section 33, above, as involving a “qualified” embrace of organ sovereignty.

[2] On these criticisms, see Richard Albert, “The Difficulty of Constitutional Amendment in Canada” (2015) 53 Alta L Rev 85; Andrew Heard & Tim Swartz, “The Regional Veto Formula and Its Effects on Canada’s Constitutional Amendment Process” (1997) 30:2 Canadian Journal of Political Science 339.

[3] It’s easier to footnote these multiple places, since I can only hyperlink to one of them. See Ian Peach & Richard Mailey, “Changes are needed to limit provincial use of the notwithstanding clause” (25 October 2023), online: Policy Options <https://policyoptions.irpp.org/2023/10/notwithstanding-scrutiny/>; Ian Peach & Richard Mailey, “Weaving Section 33 into the Charter Project: Citizen-Led Oversight as a Potential Way Out of the Legitimacy Conundrum” (2024) 32:3 Const Forum Const 53.

[4] Other requirements include: 1) that the bill originates in the Commons and is introduced by a minister, 2) that the bill is only introduced after a Supreme Court opinion has been rendered on the bill’s Charter compliance (note: it’s expressly contemplated that this could be in the form of a reference opinion), 3) that the bill is accompanied by a Charter statement, and 4) that a motion to read the bill for a third time in the Commons has the support of a two-thirds supermajority.