On March 10, 1998, Alberta invoked the notwithstanding clause, pre-emptively, in an attempt to prevent people who’d been victims of the Eugenics Act from suing for redress. The Klein government had been spooked when Leilani Muir, sterilized as a girl without her consent or knowledge, successfully sued and won a judgment of more than $740,000—plus costs. To head off more lawsuits, the province proactively invoked the notwithstanding clause to stop others from suing and capped damages at $150,000 a person.
The media and public outcry was instantaneous. Albertans were revolted at the idea of using the constitutional clause to strip legal rights from a group of uniquely vulnerable people. Less than 24 hours later premier Ralph Klein reversed his decision. “This was presented to caucus in pure, legal technical terms and… yes, my political sense probably didn’t click into gear,” he told reporters at the time. “It became abundantly clear that to individuals in this country, the Charter of Rights and Freedoms is paramount and the use of any tool… to undermine the Charter of Rights and Freedoms is something that should be used only in very, very rare circumstances.”
If we become inured to abuse of the notwithstanding clause, the rights of all Canadians will be at risk.
Just three weeks later, the Supreme Court brought down a powerful unanimous decision in the Vriend case, ruling that protection from discrimination on the basis of sexual orientation should be read into Alberta’s human rights legislation and the Canadian Charter of Rights and Freedoms.
Klein again came under immense pressure, this time from two sides: from social conservatives demanding he invoke the notwithstanding clause, and from many other Albertans who called on him to respect the Supreme Court’s ruling. After a week of rancorous public and caucus debate, Klein announced he would not invoke the clause and would let the landmark gay rights decision stand.
Thus, in an accident of political timing, the PR debacle over the use of the notwithstanding clause in March helped to uphold LGBTQ rights in April.
A quarter-century ago, the notwithstanding clause worked exactly the way it was supposed to. It gave the ultimate decision on matters of profound public importance to the elected legislature. And Albertans did their job and held their government to account.
Klein may have been an unlikely defender of minority rights. But he was a deft and canny politician. He learned that invoking the clause had a high political cost, one he wasn’t willing to pay.
Yet 25 years later Saskatchewan pre-emptively invoked the notwithstanding clause to out trans and gender queer kids, to bully literal schoolchildren, in order to uphold a policy that would strip young teens, wrestling with questions of gender identity, of their rights to privacy—and safety.
The Moe government’s shocking 2023 decision isn’t just empty culture-war posturing. This isn’t just a fight about trendy pronouns. Saskatchewan’s “Parental Inclusion and Consent” policy puts the safety of children under 16 at real risk. Students would no longer be able to trust their teachers and principals not to “out” them. Kids who live with transphobic parents or guardians could become victims of emotional or physical abuse. They could well end up homeless, betrayed by their teachers and rejected by those who are supposed to care for them.
In the name of “parental rights” the government of Saskatchewan is poised to rip families apart, all because it has fallen under the thrall of a moral panic imported from the US— the fear that schools and libraries are somehow “grooming” children and “turning them” trans. It is telling people their children are in danger, that some menacing, mysterious group wants to steal or mutilate or somehow convert their kid. That’s propaganda with a bloody pedigree. For thousands of years, across cultures and continents, “save the children” rhetoric has been the go-to tactic to incite a mob. It’s the rhetoric of the witch hunt. It’s the rhetoric of blood libel. And it’s the ugly illogic, alas, endorsed by UCP members at their fall policy convention.
The only true bulwark we have against the misuse of the notwithstanding clause is voter indignation—and politicians’ fear. This means, alas, that minority rights are only protected when enough people rally to defend them. One of the reasons Klein backed down on using the notwithstanding clause—twice—was because strong news organizations helped inspire a backlash. Today, with newsrooms a shadow of their former selves, I fear there aren’t enough voices sounding the alarm.
But if we allow the notwithstanding clause to become a routine tool to strip minorities of their rights, whether they be observant Sikhs, Muslims and Jews in Quebec, or gender queer children in Saskatchewan, if we become inured to its abuse, we put the rights of all Canadians at risk. It remains up to all of us to push back and make our voices heard—just as Albertans were brave enough to do 25 years ago.
Paula Simons is an independent senator and the host of the podcast Alberta Unbound. She lives in Edmonton.
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