Alberta proposes to invoke notwithstanding clause in three pieces of legislation
Raising timing and deliberative issues
This post will be much longer than those that will follow in order to set the table, so to speak, about some of the issues that will be highlighted in the Monitor. Going forward, when similar issues arise, I will refer readers back here.
Over the last decade, Canada has seen prominent uses of section 33 of the Canadian Charter of Rights and Freedoms (also known as the “notwithstanding clause”). This trend is now continuing in Alberta, one of Canada’s Western provinces, which is led by United Conservative Party Premier Danielle Smith.
The notwithstanding clause in Canada
This section of the Canadian Charter permits the federal Parliament and provincial legislatures to allow their own legislation to operate notwithstanding judicial interpretations of certain rights provisions, namely fundamental freedoms (s. 2), legal rights (ss. 7-14), and equality rights (s. 15).
Therefore, Canada has ‘weak-form judicial review,’ wherein judicial review is introduced in a constitutional order but where it may be non-final in the short- to medium-term. Whether judicial review of this variety is ‘weak-form’ in practice is a matter of some debate. The main advantage of such a design is that, like legislative supremacy that involves no judicial review, it may leave greater space for deliberation and accountability by and through elected legislatures in the face of reasonable disagreement over the meaning and scope of the rights individuals may hold. This may be particularly salient in federal systems, in which diverse approaches to the issues that may arise in the life of a democratic society are an expected and may be an advantageous feature. At the same time, it holds out the promise that the contestation and right to a hearing that may characterize judicial review may be guaranteed to rights holders in some form irrespective of what the legislature ultimately decides to do in exercising the ‘final word.’
At the time of its adoption in 1982, the notwithstanding clause was embraced by political leaders on the left, such as Saskatchewan Premier Alan Blakeney, and the right, such as Alberta Premier Peter Lougheed. The clause continues to have its supporters on both the left-wing and right-wing of politics. It also has its critics. Some would prefer legislative supremacy, while others welcome judicial supremacy.
Some rights are excluded from this design, such as the democratic rights (ss. 3-5), mobility rights (s. 6), language rights (ss. 16-23), and gender equality in the exercise of other rights (s. 28).
Alberta’s proposed invocation of the notwithstanding clause
On November 18, 2025, the Alberta government introduced Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, 2025. The legislation proposes to amend three pieces of legislation to invoke the notwithstanding clause:
Health Statutes Amendment Act: prohibit regulated health professionals from performing gender-affirming surgery on anyone under the age of 18, and ban health professionals from prescribing puberty blockers or gender-affirming hormones to anyone 15 and under, and mandating parental, physician and psychologist approval for 16- and 17-year-olds to get such treatment.
Education Amendment Act: mandate that parents be notified if a student uses a different name or pronouns at school, and that parents must opt in to their kids receiving any instructional materials that deal primarily and explicitly with gender identity, sexual orientation or human sexuality.
Fairness and Safety in Sport Act: ban transgender women and girls from women’s divisions of school, collegiate and provincially regulated sports competition.
The substantive merits of these laws have been the subject of debate, with some expressing views in favour and against. The debate will now continue in the Legislative Assembly of Alberta. The governing United Conservative Party holds 47 seats, the New Democratic Party Official Opposition holds 38 seats, and the Alberta Party holds 2 seats in the Legislative Assembly.
Beyond the merits, two points stand out from the perspective of constitutional theory and practice: (1) the ‘pre-emptive’ use of the clause; and (2) the deliberative process in relation to issues affecting child and adolescent minorities.
Pre-emptive use of the clause
These potential uses of the notwithstanding clause are relevant to a broader discussion on the ‘pre-emptive’ use of the clause. Broadly speaking, this discussion centers around uses of the notwithstanding clause that occur prior to judicial decisions. In the Canadian context, this is salient because it prevents the availability of an invalidation remedy or judicial review entirely.
However, the concept may sometimes be difficult to identify in practice. By way of example, it might be argued that Québec’s use of the notwithstanding clause in 2019 in An Act respecting the laicity of the State is ‘pre-emptive’ because there has been no judicial decision on the constitutionality of the specific law at issue. On this view, the legislature is ignoring the judiciary and there is effectively no inter-institutional interaction. But it might also be argued that the invocation is not ‘pre-emptive’ because it arises against the backdrop of a body of case law built up since 1982. On this view, the legislature is arriving at its understanding of the meaning and scope of rights after a longer-term inter-institutional interaction.
These issues arise in the Alberta case. In some respects, it might be argued that Alberta’s proposal to invoke the notwithstanding clause is ‘pre-emptive’ in that it comes before a judicial decision has been rendered on the constitutionality of the specific laws at issue. This may be particularly so in relation to the Fairness and Safety in Sport Act, which has not been the subject of any judicial decision. In addition, there is a more limited body of case law on the issue of non-binary and transgender equality rights, for example. The Supreme Court of Canada has yet to consider the issue directly. On this view, there is no inter-institutional interaction taking place.
In other respects, however, it might be argued that Alberta’s proposal to invoke the notwithstanding clause is not ‘pre-emptive’ because it follows an interim judicial decision staying the application of one of these laws, the Health Statutes Amendment Act, while the merits are decided, as well as an interim judicial decision in the neighbouring province of Saskatchewan in relation to policies similar to those found in the Education Amendment Act. Interim judicial decisions of this kind involve some consideration of whether the case raises a serious legal issue, the likelihood of irreparable harm, and countervailing public interest considerations. Some scholars have also pointed to broader comparative trends that may be in tension with these interim judicial decisions. The legislature may be understood not as ignoring the judiciary, but rather as responding to these judicial decisions and reasonably disagreeing with the meaning and scope of the rights at issue. More broadly, there is a backdrop of a body of case law on age discrimination, sex discrimination and parental rights, for example, built up since 1982. On this view, the invocation of the notwithstanding clause is part of a shorter-term and longer-term inter-institutional interaction.
This case will therefore be relevant to ongoing scholarly and practical discussions about the timing of potential invocations of the notwithstanding clause.
The deliberative process and issues affecting child and adolescent minorities
These potential uses of the notwithstanding clause are relevant to a broader discussion about the manner in which the clause is invoked. Broadly speaking, this discussion centers around the nature of the deliberation and accountability that is appropriate when the clause is operationalized in practice. In the Canadian context, this may be salient because Westminster-style parliamentary systems may be characterized by ‘executive-dominance’ and provincial legislatures (that is, sub-national legislatures) in particular are unicameral, unlike their Australian cousins. More broadly, in this case, the specific laws at issue concern individuals who, in addition to being minorities, are not part of the legislative process and are not in a position to make their views known at the ballot box (i.e. children and adolescents).
In some cases, it might be argued that drawn out debate may not be necessary or advisable. But, as a general rule, a minimum threshold of political norms of behaviour is a sound path. More broadly, the case for the legislature to have the ‘final word’ is strongest when an explanation is provided as to why a particular path better balances competing rights and interests than potential alternatives, and different perspectives are heard and considered in good faith. In some cases, it may be advisable to seek out different perspectives if they are not present in the legislature or ensure enough time for debate to compensate for aspects of the process that may be less than ideal.
These issues arise in the Alberta case. In some respects, it might be argued that executive-dominance is counterbalanced by the debates that may arise within brokerage parties, such as the governing party at issue, which is home to factions, particularly since a merger in 2017. In other words, what may seem like consensus on its face may have gone through a partial process of give-and-take internal to a political party behind closed doors. For instance, it may be the case that some elements of the governing party advocated for a broader approach, while others preferred a narrower approach. Similarly, it might be argued that debates over the issues raised by these policies have been ongoing for almost two years in the province. This is in addition to the legal debate that has occurred to date. Relatedly, it may be notable that the decision to invoke the notwithstanding clause comes almost five months after an interim judicial decision. This is distinguishable from the immediate decision to invoke the clause in similar circumstances in Saskatchewan. This means the legislative debates are only part of the deliberative picture.
In other respects, however, it might be argued that there is a need to air and consider different perspectives during the legislative process, including from within the governing party on whether alternative policies may have been considered and why particular policies may have been chosen. This may be particularly important in a unicameral legislative body. The need to do so might be heightened in relation to the Fairness and Safety in Sport Act. Similarly, it may be argued that there is a special burden on elected representatives to deliberate more extensively (or seek out different perspectives) when the rights of child and adolescent minorities are at issue, and to consider alternative paths that may be raised. In particular, there may be a need to explain how the measures are an articulation of the rights and interests at issue, why an invocation of the notwithstanding clause is appropriate in the circumstances, and why the timing is appropriate.
This case will therefore be relevant to ongoing scholarly and practical discussions about the nature of the deliberative process that is appropriate when an invocation of the notwithstanding clause is being considered.