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“The Notwithstanding Clause - When is its use Appropriate?”
Presented by Catherine Francis

This week we move away from U.S. politics to discuss a uniquely Canadian political issue:  The use of the "notwithstanding clause".  Although a uniquely Canadian issue, the use of this clause to enact legislation that violates (or potentially violates) constitutional rights has parallels to events south of the border.

What is the "notwithstanding clause"?   A very brief history.

In 1982, Canada brought home its constitution from the British Parliament.  As part of our new, home-grown constitution, the Charter of Rights and Freedoms (known colloquially as the Charter) was born.   The Charter was the product of prolonged and intense negotiations among the federal and provincial governments and resulted in a number of compromises.   One of the compromises was section 33:

Provision
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

What this means is that Parliament or any provincial legislature can enact legislation which is exempt from sections 2 or 7-15 of the Charter.  This does not affect ALL Charter rights - only the key ones:  Fundamental Freedoms (conscience and religion, thought belief, opinion and expression, peaceful assembly and freedom of association), Legal Rights and Equality Rights.

Outside of Quebec (which has regularly passed legislation using the notwithstanding clause, including its infamous Bill 21 banning religious symbols for certain public employees), section 33 has rarely been used in the 40 + years since the Charter.   But in the past few years, Ontario's premier Doug Ford has frequently mused about invoking section 33 to avoid Charter challenges to legislation, and has occasionally used it (or tried to use it, but the legislation either became unnecessary or was struck down for other reasons or retroactively repealed).

In Saskatchewan, the clause was used to pass legislation which, among other things, required parental notification and consent when students under the age of 16 wish to change their preferred names, nicknames or pronouns at school.  This is an example of conservative political ideology south of the border seeping into Canadian legislation.

Most recently, a large number of Ontario mayors (not Toronto) asked Premier Ford to use the notwithstanding clause to override a court decision preventing them from clearing homeless encampments.  They did so at his invitation.  This was the inspiration for this topic.

A few discussion questions (generated by ChatGPT, which as usual did a pretty good job):

1.   Purpose and Intent: Why was the notwithstanding clause included in the Canadian Charter of Rights and Freedoms? What purpose does it serve, and do you think it's still relevant today?

2.   Balancing Power: How does the notwithstanding clause affect the balance of power between the judiciary and the legislative branches? Should elected representatives have the final say over constitutional rights?

3.   Use of the Clause: In what situations do you think it would be appropriate for governments to invoke the notwithstanding clause? Are there situations where its use might be considered undemocratic or controversial?

4.   Impact on Rights and Freedoms: How does the possibility of invoking the notwithstanding clause impact individual rights and freedoms in Canada? Does it undermine the Charter's protections, or does it allow for necessary flexibility?

5.   Public Opinion: How important is public opinion when it comes to the use of the notwithstanding clause? Should there be more restrictions or requirements, like a referendum, before it can be used?

6.   Comparison to Other Countries: Many countries have systems that balance individual rights with governmental authority differently. How does Canada's use of the notwithstanding clause compare with similar provisions in other nations?

7.   Long-term Consequences: What are the potential long-term consequences of using the notwithstanding clause frequently? Could this lead to an erosion of Charter rights, or does it reinforce democratic accountability?

8.   Amending the Clause: Should the clause be reformed or removed altogether? If so, how could it be amended to better serve Canadian democracy?