notwithstanding clause

Understanding the Notwithstanding Clause: What it Means for Canadians

The "notwithstanding clause" is a hot topic in Canadian politics right now, generating significant buzz across the country. With a traffic volume (buzz) of around 2000, it's clear that Canadians are paying attention. But what exactly is the notwithstanding clause, and why is it causing so much discussion? Let's break it down in a way that's easy to understand.

What's the Big Deal with the Notwithstanding Clause?

The notwithstanding clause, officially known as Section 33 of the Canadian Charter of Rights and Freedoms, allows Parliament or provincial legislatures to temporarily override certain Charter rights. Think of it as a legal "override" button. It essentially allows governments to pass laws that might otherwise be seen as violating our fundamental rights and freedoms, as outlined in the Charter. This power can be used for a maximum of five years, after which the government needs to decide whether to renew it.

Recent Stir: Poilievre's Proposal and the Charter

The recent increase in discussion surrounding the notwithstanding clause stems from Conservative Leader Pierre Poilievre's proposal to use it to enact stricter sentencing for violent offenders, specifically a "three strikes" plan. He's suggested using the clause to ensure that multiple murderers remain in prison for life, without the possibility of parole. This has sparked a heated debate about the role of the Charter of Rights and the potential consequences of overriding it.

As reported by CityNews Halifax, Poilievre's stance has ignited controversy, raising concerns about the balance between public safety and individual rights. Legal experts have criticized the proposal, with some warning that it could erode constitutional norms. The Globe and Mail has also weighed in, questioning the "arbitrary measure" of Poilievre's plan.

How Does the Notwithstanding Clause Actually Work?

Section 33 of the Charter lets the federal Parliament or provincial legislatures override sections 2 and 7 to 15 of the Charter. These sections cover fundamental freedoms (like freedom of expression and religion), legal rights (like the right to life, liberty, and security of the person), and equality rights.

Here's the catch: The notwithstanding clause can't be used to override all Charter rights. For example, democratic rights, such as the right to vote, are protected.

The actual wording required to invoke the clause is quite specific. The legislation must explicitly state that it is operating "notwithstanding" a specific section of the Charter.

A Look Back: History and Context

The notwithstanding clause wasn't just thrown into the Charter on a whim. It was actually a key part of the compromise needed to get all provinces on board with the Charter in 1982. Some provinces, particularly Quebec, were concerned that the Charter would give too much power to the courts and limit the ability of elected officials to make laws that reflected the specific needs and values of their province. The notwithstanding clause was included as a safety valve, a way for provinces to protect their unique interests.

According to The Canadian Encyclopedia, the clause has been used sparingly since 1982, primarily by certain provinces. Quebec has historically been the most frequent user of the clause, often to protect its language laws. Ontario invoked it in 2022 during a dispute with education workers.

Why All the Fuss Now?

Poilievre's pledge to use the notwithstanding clause is significant because it would be the first time a Canadian Prime Minister has ever invoked it at the federal level. This is a big deal because it raises questions about the separation of powers and the role of the courts in protecting our rights.

Some argue that using the notwithstanding clause is a legitimate tool for elected officials to respond to the will of the people and address pressing social problems like violent crime. Others worry that it could set a dangerous precedent, weakening the Charter and making it easier for governments to infringe on our fundamental freedoms.

Potential Impacts and What's at Stake

The immediate impact of Poilievre's proposal is primarily political. It has ignited a national debate about the balance between individual rights and public safety, and it has forced Canadians to think critically about the role of the Charter in our society.

Here are some potential implications:

• Erosion of Charter Rights: Critics fear that using the notwithstanding clause, even in a limited way, could pave the way for future governments to more easily override Charter rights.
• Political Polarization: This issue is highly divisive, and it could further polarize Canadian politics.
• Legal Challenges: Any law passed using the notwithstanding clause would likely face legal challenges, potentially leading to a lengthy and costly court battle.
• Impact on International Reputation: Some worry that using the notwithstanding clause could damage Canada's reputation as a champion of human rights.

Looking Ahead: What Could Happen Next?

It's difficult to say exactly what will happen next, but here are a few possible scenarios:

• Poilievre wins the next election and follows through on his promise: In this scenario, we could see the federal government invoking the notwithstanding clause to pass legislation related to sentencing for violent offenders. This would likely trigger legal challenges and further political debate.
• Poilievre wins the next election but backs away from his promise: It's possible that Poilievre could soften his stance on the notwithstanding clause, perhaps in response to public pressure or legal concerns.
• Another party wins the next election: If another party wins, it's unlikely that they would pursue Poilievre's plan to use the notwithstanding clause.
• The Supreme Court weighs in: Regardless of which party is in power, the Supreme Court could ultimately be asked to rule on the constitutionality of using the notwithstanding clause in this context.

The Notwithstanding Clause: A Tool or a Threat?

The notwithstanding clause is a complex and controversial part of the Canadian legal system. Some see it as a necessary tool for governments to address pressing social problems, while others view it as a threat to our fundamental rights and freedoms. As Canadians, it's important to understand what the notwithstanding clause is, how it works, and what its potential implications are. This is a conversation that will likely continue to unfold in the months and years to come.

Key Takeaways for Canadians:

• The notwithstanding clause (Section 33 of the Charter) allows governments to temporarily override certain Charter rights.
• Pierre Poilievre has proposed using it to enact stricter sentencing for violent offenders.
• This proposal has sparked a national debate about the balance between individual rights and public safety.
• The notwithstanding clause has been used sparingly in the past, primarily by provincial governments.
• Using the clause at the federal level would be a significant departure from past practice.
• There are potential risks and benefits associated with using the notwithstanding clause, and it's important for Canadians to be informed about this issue.

By understanding the nuances of the notwithstanding clause, Canadians can engage in informed discussions and contribute to shaping the future of our Charter of Rights and Freedoms.