Understanding Canada’s Notwithstanding Clause: A Comprehensive Exploration of its Rarely Utilized Power

What is the Notwithstanding Clause? An Explainer on the Rarely Used Provision

Premier Scott Moe’s Use of the Notwithstanding Clause

Premier Scott Moe of Saskatchewan has recently pledged to use the notwithstanding clause of the Constitution in order to pass legislation that will ensure the province’s school pronoun policy remains in place. This statement comes shortly after a judge granted an injunction to pause the policy, which requires parental consent for children under 16 who wish to go by different names or pronouns at school. Lawyers for UR Pride, an LGBTQ+ organization, sought the injunction, arguing that the policy could cause teachers to inadvertently out or misgender children, thereby violating the Charter of Rights and Freedoms.

The Basics of the Notwithstanding Clause

The notwithstanding clause, also known as Section 33 of the Canadian Charter of Rights and Freedoms, grants provincial legislatures or Parliament the power to override certain portions of the Charter for a period of five years through the passage of a law. The clause was created as a compromise during the Charter negotiations in the early 1980s, in order to address concerns from provinces such as Alberta and Saskatchewan who desired the ability to counter decisions made by the courts.

Origins and Structure of the Notwithstanding Clause

The current form of the notwithstanding clause emerged as a tool to garner support from provinces for then-Prime Minister Pierre Trudeau’s signature legislation, the Charter of Rights and Freedoms. While Trudeau initially opposed the inclusion of the clause, he ultimately agreed to its inclusion in order to secure provincial support. The clause only applies to certain sections of the Charter and cannot be used against provisions that protect the democratic process. Furthermore, the clause cannot be utilized for more than five years at a time, ensuring that the public has the opportunity to challenge the government’s decision to invoke the clause in a general election before it can be renewed.

History and Notable Uses of the Notwithstanding Clause

The notwithstanding clause is typically invoked in response to controversial court rulings. Former Prime Minister Stephen Harper’s Conservative government faced questions about the use of the clause but refused to invoke it following a court decision regarding assisted dying. While the clause is often a topic of debate, its actual usage is relatively rare. In 1986, Saskatchewan utilized the clause to protect back-to-work legislation, and Quebec used it in 1988 to protect residents and businesses that used French-only signs. Alberta attempted to invoke the clause in a 2000 bill restricting marriage to a man and a woman, but this effort failed as marriage was determined to be under federal jurisdiction.

In more recent years, the Ontario government exercised the notwithstanding clause to pass legislation imposing contracts on education workers and prohibiting them from going on strike. Ontario’s Progressive Conservative government also employed the clause to restore parts of the Election Finances Act that had been deemed unconstitutional. Quebec has also employed the notwithstanding clause in passing its major language law reforms and religious symbols law.

Philosophical Discussion and Editorial

The use of the notwithstanding clause raises significant philosophical questions surrounding the balance of power between the courts, legislatures, and the public. Critics argue that the clause undermines the role of the courts in upholding fundamental rights and freedoms, allowing governments to override constitutional protections. They believe that judicial independence and the separation of powers are crucial to the functioning of a liberal democracy.

Proponents of the notwithstanding clause argue that it serves as a necessary tool for elected representatives to assert their democratic mandate and address public concerns in instances where the courts may have made decisions that diverge from popular sentiment. They contend that elected officials are accountable to the people and should have the ability to shape legislation and policy within constitutional limits.

In the specific case of Premier Scott Moe’s use of the notwithstanding clause to ensure the province’s school pronoun policy remains in place, the debate revolves around the balance between protecting the rights of transgender and non-binary students and respecting parental rights and religious freedoms. Supporters of the policy argue that it is necessary to create safe and inclusive learning environments for gender-diverse students. Critics contend that the policy infringes on parental rights and imposes government interference in family matters.

Advice

As the debate over the use of the notwithstanding clause continues, it is important for Canadians to engage in informed and respectful dialogue. Citizens should familiarize themselves with the provisions of the Charter of Rights and Freedoms to understand the constitutional rights and limits imposed on both the courts and governments. By staying informed and actively participating in public discourse, Canadians can contribute to shaping the ongoing conversation about the appropriate use of the notwithstanding clause in our democratic system.