The notwithstanding clause, or section 33 of the Canadian Charter of Rights and Freedoms, has been invoked in various instances, including recent legislation in Quebec, Saskatchewan and Alberta. If you can read s. 33 without getting a headache, you’re definitely a better person than I am. In very general terms, the section allows Canadian governments, federal and provincial, to ignore some aspect of the Charter in legislation of their own. Such legislation will have effect for up to five years—at which time I guess it will be set atop the garbage pile of history.
I feel the headache coming on, and I haven’t even mentioned “notwithstanding” yet. To legislate in this way, denying or suspending some aspect of the Charter of Rights and Freedoms, is called “invoking the notwithstanding clause.”
To get one’s head around the concept of “notwithstanding” isn’t easy. As a word, it seems to work against itself. The “withstanding” part seems simple; just a modified way of saying “standing with.” We get that, right? I stand with you on the matter of children not being allowed to throw stones at one another on the playground. I find “notwithstanding” much more difficult to get my ahead around. If it’s easy-peasy for you, well, carry on. No sense wasting your time.
In its more normal use, notwithstanding isn’t hard to fathom. E.g., “Notwithstanding the rainstorm, the teams continued to play baseball.” Trust me, the Charter’s notwithstanding clause is not so simple. It’s more like: “We stand with you on the safeguarding of our sacred rights and freedoms—until we don’t.”
To get one’s head around the concept of “notwithstanding” isn’t easy. As a word, it seems to work against itself.
As I searched for a helpful definition of the political use of the word notwithstanding, I was delighted to find a reference to Wayne’s World. Some of you won’t get this reference, so pardon me as I explain. In the 1990s, comedians Dana Carvey and Mike Myers came up with a sketch for the comedy show Saturday Night Live. Dana played Garth, and Mike played Wayne, two teenage stoners who create a TV show called Wayne’s World that they broadcast from Wayne’s parents’ basement. It was a huge hit and went on for years, became a movie etc. If it’s something new to you, use Wayne’s World as a search term on the internet, and you’ll be watching a sketch in about a minute. One of Garth and Wayne’s signature moves was to say something that sounded out of character for them; i.e., serious or respectful. Then they’d pause and both would say, “Not!”
And that’s exactly how Alberta’s use of the notwithstanding clause part of section 33 works: “We agree to abide by the rights and protections of Canadian citizens as set out in the Charter—Not!”
When a word is troubling me, I look up its origins. The etymology of “notwithstanding” is an eye-opener. It doesn’t come from the modern world, as I thought for sure it would. I was looking for a definition like “a bureaucratic term invented to fuzzy up a simple concept.” But it’s actually a very old word (Olde and Middle English): widstandan. The ancient meaning was “to stand against or resist.”
A lovely thing in one of the etymologies I consulted was that the “wid” part of “widstandan” contains a very old connotation of the word “with”: that is, “with” as negative! Who knew? So, when you say to someone “I’m with you on that,” and they stomp off, you might just be dealing with a historical etymologist.
So, in other words, the folks who invented the notwithstanding clause really did mean that it should convey the idea that we’d stand with one another on these grave matters of our rights and freedoms as Canadians—until such time as someone might wish to use the negative connotation of “with” and not be with you at all.
In the present instance of Alberta’s using the notwithstanding clause of the Charter of Rights and Freedoms—or, at least the first time Alberta used it, as this government has since invoked the clause three more times—the UCP government is saying (and this is not a direct quote):
“We do acknowledge that Alberta teachers have a Charter right to organize, which includes the right to form and join unions (under freedom of association). But we thought the teacher strike had gone on rather too long, so we used s. 33 of the Charter to force teachers back to work.” The notwithstanding clause had never been used in Canada to end a strike before.
When some new use of the notwithstanding clause is found, it generally goes to the courts for further argument and analysis. So someday, somewhere far down the road, we can probably expect a decision by the Supreme Court of Canada that (no matter what the decision is) will be of little use to the Alberta teachers who went on strike last fall and were ordered back to work. But it might help teachers’ unions and other unions in the future.
Will Garth and Wayne of Wayne’s World be invoked in the eventual Supreme Court decision? Likely—not.
Fred Stenson has published 20 books. A new novel, Carpenter Creek, is forthcoming from Thistledown Press in fall 2026.
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