What is the notwithstanding clause? An explainer on the rarely used provision.
The Ontario government has used the notwithstanding clause to restore parts of the Election Finances Act that had been declared unconstitutional.
A bill invoking the clause passed Monday and means third parties can only spend $600,000 in the 12 months before an election is called. Opponents say the ruling Progressive Conservatives are trying to silence criticism ahead of next summer's provincial vote, while the government argues the bill is necessary to protect elections from outside influence.
Here is a look at the rarely used clause:
WHAT IS IT?
The notwithstanding clause -- or Section 33 of the Charter of Rights and Freedoms -- gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.
ITS ORIGINS
The clause in its current form came about as a tool to bring provinces onside with then-prime minister Pierre Trudeau's signature piece of legislation. With charter negotiations ramping up in the early 1980s, Trudeau didn't see the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts. In the end, Trudeau reluctantly agreed.
ITS STRUCTURE
The clause only applies to certain sections of the charter. For instance, it can't be used against provisions that protect the democratic process -- that would create a pathway to dictatorship. The clause also can't be used for more than five years at a time. This ensures that the public has the chance to challenge a government's decision to use the clause in a general election before it can be renewed.
ITS USE
The notwithstanding clause usually comes up whenever there is a controversial court ruling. For instance, former prime minister Stephen Harper's Conservatives were asked about, but refused to use, the clause on a court decision involving assisted dying. While often debated, its use is much rarer. Quebec, as the only provincial government to oppose the charter, passed legislation in 1982 that invoked the clause in every new law, but that stopped in 1985. In 1986, Saskatchewan used the clause to protect back-to-work legislation and Quebec used it again in 1988 to protect residents and businesses using French-only signs. Alberta tried to use the clause in a 2000 bill limiting marriage to a man and a woman, but that failed because marriage was ruled a federal jurisdiction.
RECENT NOTABLE USES
In May, Quebec introduced a major reform to the province's signature language law that reasserts the right of Quebecers to live and work in French. Bill 96 would toughen sign laws and strengthen language requirements for businesses, governments and schools. Premier Francois Legault has said the entire bill is covered by the notwithstanding clause.
Quebec also used the clause in its religious symbols law. Bill 21 was adopted in June 2019 and prohibits public sector workers who are deemed to be in positions of authority, including teachers, police officers and judges, from wearing religious symbols such as hijabs and turbans on the job.
Ontario Premier Doug Ford previously threatened to use the notwithstanding clause in 2018, when his government intended to slash Toronto city council seats during a municipal election. That attempt sparked outrage but the clause ultimately wasn't involved because of how a related court process unfolded.
------
This report by The Canadian Press was first published June 14, 2021.
CTVNews.ca Top Stories
Canadian gov't proposes new foreign influence registry as part of wide-spanning new bill
Prime Minister Justin Trudeau's government is proposing a suite of new measures and law changes aimed at countering foreign interference in Canada, amid extensive scrutiny over past meddling attempts and an ever-evolving threat landscape.
Boeing Starliner capsule's first crewed test flight postponed
The long-awaited first crewed test flight of Boeing's new Starliner space capsule was called off for at least 24 hours over a technical issue that launch teams were unable to resolve in time for the planned Monday night lift-off.
Teacher charged in historical sexual assault of Calgary teenage girl
Calgary police have charged a teacher with the alleged sexual assault of a teenage girl more than 20 years ago.
Winnipeg man admits to killing four women, argues he's not criminally responsible
Defence lawyers of Jeremy Skibicki have admitted in court the accused killed four Indigenous women, but argues he is not criminally responsible for the deaths by way of mental disorder – this latest development has triggered a judge-alone trial rather than a jury trial.
Man banned from owning animals after fatal Calgary dog attack
The owner of three Calgary dogs that got loose and mauled a woman to death in 2022 has been ordered to pay a $15,000 fine within one year and banned from owning any animal for 15 years.
East-end Ottawa family dealing with massive rat infestation
Residents in Ottawa’s Elmridge Gardens complex are dealing with a rat infestation that just won’t go away. Now, after doing everything they can to try to fix the issue, they are pleading with the city to step in and help.
Mediterranean staple may lower your risk of death from dementia, study finds
A daily spoonful of olive oil could lower your risk of dying from dementia, according to a new study by Harvard scientists.
An El Nino-less summer is coming. Here's what that could mean for Canada
As Canadians brace themselves for summer temperatures, forecasters say a weakening El Nino cycle doesn’t mean relief from the heat.
Newfoundland and Labrador latest province to tighten rules on Airbnbs
Newfoundland and Labrador is the latest jurisdiction to bring in stricter rules for short-term rentals, with a coming set of regulations that will force operators to register with the provincial government.