What is the Notwithstanding Clause and What Does Using It Mean?

 

Written by on September 11, 2018

Ontario politics and constitutional law have been in the news recently due to the unprecedented use of the “Notwithstanding Clause” contained in Canada’s Charter of Rights and Freedoms. While legal scholars and law students are no doubt debating this with great interest, what does it really mean for an average Ontario resident?

First of all, the “Notwithstanding Clause” can be found in section 33 of the Canadian Charter of Rights and Freedoms. The Charter is a part of the Constitution of Canada, and provides a legal basis for all of the rights we enjoy as citizens, including the rights to freedom from discrimination, freedom of mobility, freedom of religion, and voting rights. However, section 33 allows some of the rights in the Charter to be temporarily overridden by either the federal or a provincial government for a period of not longer than five years—this is the “Notwithstanding Clause”, or more simply, the “override clause”.

This override clause can be used to enact legislation “notwithstanding” any rights found in sections 2, and 7 to 15 of the Charter. Only a few rights are excluded from this override clause. For instance, the federal or a provincial government cannot override mobility rights (the ability of a Canadian citizen or permanent resident to move around the country and to enter and leave Canada as they choose); a democratic right (the right to vote and time periods in which an election must be held) and language rights (the two official languages of Canada being English and French). All other rights may be “overridden” by legislation, including freedom of religion, equality rights, or legal rights.

The reason for the creation of this clause in the first place is historical and a bit complex—essentially, it was the clause that permitted the Charter of Rights and Freedoms to be created, as several provincial ministers would not agree to the Charter of Rights and Freedoms without it. However, its use was never meant to be regular or routine; former Prime Minister Chretien suggested that the override clause could be used for something as serious as the Supreme Court legalizing hate speech as freedom of expression. It was never meant to be used by provinces as a “housecleaning” measure, or to force through discriminatory legislation that the courts  correctly found unconstitutional.

But this override is only temporary, right? In theory, yes—this override clause only allows the legislation at issue to exist for five years. However, the legislation can be renewed indefinitely—meaning the clause can just be invoked again and again. The five year time limit was chosen as that is the longest amount of time a government can exist without an election being called—the theory being that if citizens are unhappy with the legislation, they can vote out the party who enacted it, and the new government will let the legislation expire or revoke it completely.

Has this clause ever been used before? The Canadian federal government has never tried to use it. In fact, there was a movement to limit or prevent its use by the federal government, but the amendment to the constitution never came to be. The Province of Alberta attempted to invoke the clause during the same-sex marriage debate and it was extremely unpopular with the general population. In fact, the very suggestion of the use of the clause by a government is generally so unpopular with the public that to use it is often politically costly.

The use of the notwithstanding clause should not be taken lightly or ignored by the general public as something that does not concern them. Any legislation that proposes to override the constitutionally protected rights of Canadian citizens must be taken seriously by everyone.

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