Effects of the Notwithstanding Clause on Human Rights.

AuthorMcKay-Panos, Linda
PositionCanadian Charter of Rights and Freedoms

Recently, there has been much discussion of the use of the notwithstanding clause, which is section 33(1) of the Canadian Charter of Rights and Freedoms (Charter). Section 33(1) reads:

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. Section 33(3) provides that a declaration made under section 33(1) shall cease to have effect after five years and section 33(4) states that a declaration may be re-enacted by Parliament or the legislatures.

Ontario's Premier Doug Ford recently said he would use the notwithstanding clause to reduce the number of Toronto's wards for the October 2018 municipal election. The Ontario Superior Court had struck down the legislation (Bill 5) as an unjustified Charter infringement on freedom of expression (See: City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151). The Ontario Court of Appeal granted a stay of the ruling, thus allowing the election to proceed without Premier Ford invoking the notwithstanding clause--at least until after the appeal is heard.

Also, after the CAQ (Coalition Avenir Quebec) won the provincial election in Quebec, newly elected Premier Francois Legault stated that he would invoke the notwithstanding clause to address Charter concerns with legislation that bans anyone in a position of authority (e.g., teachers, police officers, judges) from wearing any "conspicuous" religious symbols at work. If they do, they will be dismissed from their jobs.

These two examples raise the important issue of "What was the intended purpose of including the notwithstanding clause in the Charter and do these situations merit its use?"

Most agree that section 33 was intended as a safety valve to be used only rarely. Commentators thought that section 33 would be relied on to preserve our basic social and political institutions and to enable legislatures to overcome "unacceptable judicial determinations where there was popular support for doing so" (Marc-Andre Roy and Laurence Brosseau, The Notwithstanding Clause of the Charter (May 7, 2018) Library of Parliament (Roy and Brosseau)).

Section 33 has not been invoked very often. Quebec was the first province to seek to use the notwithstanding clause. An Act respecting the Constitution Act, 1982, SQ 1982, c 21, re-enacted all Quebec legislation that had...

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