What is the notwithstanding clause? An explainer on the rarely used provision
The Ontario government says it intends to invoke the notwithstanding clause to keep an eventual law affecting some education workers in force in the event of any constitutional challenges.
A bill introduced Monday would impose contracts on approximately 55,000 education workers in the province -- including librarians, custodians and early childhood educators -- and ban them from going on strike. The Canadian Union of Public Employees, which represents the workers, has said it plans to fight the legislation.
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
Ontario Premier Doug Ford invoked the notwithstanding clause in June 2021 -- for the first time in the province's history -- to restore parts of the Election Finances Act that had previously been declared unconstitutional, enforcing a rule that third parties could only spend $600,000 on advertising in the 12 months before an election is called. The government argued the move was necessary to protect elections from outside influence, while critics accused the government of trying to silence criticism.
A judge upheld the advertising restrictions last December after a coalition of labour groups challenged the measure in court.
Ford had previously threatened to use the 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 invoked because of how a related court process unfolded.
In June, Quebec passed a major reform to the province’s signature language law that reasserts the right of Quebecers to live and work in French. Bill 96 toughened sign laws and strengthened language requirements for businesses, governments and schools. Premier François Legault has said the entire bill is covered by the notwithstanding clause.
A judge suspended two articles of that law in August, citing risks to access to justice, until the case can be heard on its merits.
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.
This report by The Canadian Press was first published Oct. 31, 2021.
CTVNews.ca Top Stories
BREAKING Bob Cole, veteran CBC broadcaster and former voice of 'Hockey Night in Canada,' dead at 90
Bob Cole, legendary CBC broadcaster and former voice of Hockey Night in Canada, has died. He was 90.
Harvey Weinstein's 2020 rape conviction overturned by N.Y. appeals court
New York's highest court on Thursday overturned Harvey Weinstein's 2020 rape conviction, reversing a landmark ruling of the #MeToo era in determining the trial judge improperly allowed women to testify about allegations against the ex-movie mogul that weren't part of the case.
BREAKING Honda to get up to $5B in govt help for EV battery, assembly plants
Honda is set to build an electric vehicle battery plant next to its Alliston, Ont., assembly plant, which it is retooling to produce fully electric vehicles, all part of a $15-billion project that is expected to include up to $5 billion in public money.
MPP Sarah Jama asked to leave Ontario legislature for wearing keffiyeh
MPP Sarah Jama was asked to leave the Legislative Assembly of Ontario by House Speaker Ted Arnott on Thursday for wearing a keffiyeh, a garment that is banned at Queen’s Park.
CTE: Researchers believe widespread brain injury may contribute to veteran suicide rate
Researchers are working to better understand if some Canadian military veterans may be suffering from Chronic Traumatic Encephalopathy, also known as CTE -- a disorder previously found in the brains of professional football and hockey players after their death.
1 arrested in northern Alberta during public shelter order
Residents of John D'Or Prairie, a community on the Little Red River Cree Nation in northern Alberta, were told to take shelter Thursday morning during a police operation.
Secret $70M Lotto Max winners break their silence
During a special winner celebration near their hometown, Doug and Enid shared the story of how they discovered they were holding a Lotto Max ticket worth $70 million and how they kept this huge secret for so long.
Remains from a mother-daughter cold case were found nearly 24 years later, after a deathbed confession from the suspect
A West Virginia father is getting some sense of closure after authorities found the remains of his young daughter and her mother following a deathbed confession from the man believed to have fatally shot them nearly two decades ago.
New deep-water channel allows first ship to pass Key bridge wreckage in Baltimore
The first cargo ship passed through a newly opened deep-water channel in Baltimore on Thursday after being stuck in the harbor since the Francis Scott Key Bridge collapsed four weeks ago, halting most maritime traffic through the city's port.