Re: Proposed Alberta separation referendum question approved
Posted: Wed May 13, 2026 2:18 pm
Imagine she invokes the Notwithstanding clause to override this.
She would still be subject to the fine and jail time for the breach and if she were to proceed then the ball will be in Carney court and he does have a panic button to override. Section 33 of the Charter gives provincial legislatures and Parliament the power to override certain Charter rights for up to five years that would stalemate Smith. It does have other tools before that thou:
1. Use the federal “Peace, Order, and Good Government” (POGG) power
In extremely rare cases, Ottawa could pass a federal law that occupies the field and supersedes a provincial law — but:
It must be a matter of national concern,
Courts are extremely strict about this,
It cannot simply be used to cancel a provincial override.
This is a theoretical tool, not a practical one.
2. Challenge the provincial law on grounds other than the Charter rights being overridden
The Notwithstanding Clause only shields a law from sections 2 and 7–15 of the Charter.
It does not protect against:
Division of powers challenges (e.g., province legislating in federal jurisdiction)
Aboriginal and treaty rights (s.35)
Democratic rights (s.3–5)
Mobility rights (s.6)
Language rights (ss.16–23)
Unwritten constitutional principles (rare but possible)
This is how courts have struck down laws even when s.33 was invoked.
3. Use federal spending power
Ottawa can attach conditions to federal funding.
Example: “If you use s.33 pre‑emptively, you lose X program funding.”
This is politically explosive but constitutionally allowed.