Liberal voters more likely to support use of notwithstanding clause than Conservatives, poll finds
A new poll from Leger has found Liberal voters are more likely to support the use of the notwithstanding clause than Conservatives. This despite the fact that the Carney government submitted a written document to the Supreme Court last fall calling on the court to put limits on the use of the clause, which could be gutted by the court in its eventual ruling.
Andrew Enns, executive vice-president of Leger’s Central Canada operations, told National Post he was surprised to find Liberal voters more likely to favour use of the clause. Among this group, 51 per cent supported it strongly or somewhat, while 33 per cent were against its use.
Among Conservatives, support was 39 per cent while opposition was 45. Both groups featured 16 per cent who weren’t sure.
The submission notes that the temporary nature of the clause, officially section 33 of the Charter of Rights and Freedoms , “confirms that it cannot be used to cause an irreparable impairment of the rights and freedoms guaranteed by … the Charter. Such use would amount to indirectly amending the Constitution. It follows that the courts must retain jurisdiction to review, on a case-by-case basis, whether the use of s. 33 violates this limit.”
Liberal voters were also more likely to say they were familiar with the clause, with 48 per cent indicating some degree of awareness, as compared to 38 per cent Conservative voters.
“I think of the most recent times that the clause has been talked about and even used was with respect to minority rights, transgender rights in this case,” said Enns.
“And Justin Trudeau, when he was prime minister, he wasn’t pleased with that. And so I was kind of surprised that Liberal voters would have still been more supportive of using the notwithstanding clause.”
In 2022, speaking about a proposed use of the clause in Ontario Trudeau said : “Canadians themselves should be extremely worried about the increased commonality of provincial governments using the notwithstanding clause pre-emptively to suspend their fundamental rights and freedoms.”
The notwithstanding clause is being studied by the Supreme Court of Canada as part of a challenge to Bill 21, Quebec’s controversial law that bans public-sector workers from wearing religious symbols.
The clause allows governments to pass laws that are likely to violate fundamental rights protected by the Charter, and prevents courts from striking them down.
When applied pre-emptively, it basically knocks down a court challenge before it even begins. Quebec’s use of the notwithstanding clause in 2019 regarding Bill 21 was pre-emptive, as was its use in 2021 over language law reforms restricting the use of English.
The province renewed the former legislation in 2024, at which point the invocation must be reviewed by legislators. The law and the invocation of section 33 were challenged in court and upheld twice before landing at the Supreme Court in March for four days of hearings, the longest case ever heard by that body.
The Leger poll found that 39 per cent of Canadians say they have some familiarity with section 33, but only eight per cent described themselves as very familiar with it, while 31 per cent said they were just somewhat familiar.
On the other side of the ledger, 34 per cent of Canadians said they were not very familiar with the clause, and 18 per cent said they were not at all familiar. Nine per cent said they had never heard of it.
But when asked for their opinions on the general use of the notwithstanding clause (whether or not they knew what it was), 40 per cent of Canadians supported it to some degree, while 39 per cent were opposed and 21 per cent didn’t know. When asked about its pre-emptive use, support dropped to 31 per cent, while opposition rose to 46 and the “don’t knows” rose slightly to 23 per cent.
A question about support of pre-emptive use of the clause resulted in closer numbers among voters, with both Liberal and Conservative support of about 34 per cent, and opposition from both groups at about 48 per cent.
Liberal voters were also more likely to say they were familiar with the clause, with 48 per cent indicating some degree of awareness, as compared to 38 per cent Conservative voters.
Last year Alberta invoked the clause on two occasions. The first was to end a teachers’ strike. The second (technically three times) was to restrict medical treatment such as hormone therapy for children under 16, to ban transgender athletes 12 and older from competing in female amateur sports, and to require parental consent for students to change their names or pronouns at school.
In 2023 Saskatchewan had made a similar move regarding pronouns.
Ontario has also used the clause twice in recent years. In 2021 it was to enforce a rule limiting third-party ad spending in the 12 months before an election. And in 2022 it was to prohibit education workers from striking, though the government later repealed that bill.
Given that use of the notwithstanding clause in Ontario and Alberta was by conservative governments, one might expect support by Conservative voters there to be high. But total support in Alberta was just 36 per cent, and in Ontario 41 per cent, lower than in in British Columbia (44 per cent) and Manitoba/Saskatchewan (45 per cent).
Enns noted that in Manitoba, where he resides, the New Democratic Party under Premier Wab Kinew has introduced legislation that would require use of the notwithstanding clause to go before a court judge, “to basically block the pre-emptive use” of the clause.
“So you see … the conversation around the notwithstanding clause starting to percolate in different ways, in the public discourse,” Enns said.
The Supreme Court hearings wrapped up at the end of March, having heard from more than 60 appellants, respondents and intervenors, the most in the court’s 150-year history. Chief Justice Richard Wagner said the court will issue its judgment at some point in the future, but did not provide a date.
The Leger poll reached out to 1,521 adult Canadians between April 24 and April 26. A probability sample of this size yields a margin of error no greater than plus or minus 2.51 per cent, 19 times out of 20.
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