Notwithstanding Clause

A clause in the Canadian Charter of Rights and Freedoms than enables legislatures to override the Charter’s fundamental rights protections (though not minority language rights protections).

The Notwithstanding Clause was a compromise that allowed some holdout provinces during the marathon 1981 constitutional negotiations to sign on. The argument of those premiers was that a US-style written rights charter was at odds with Canada’s Westminster parliamentary system, which emphasizes the primacy of Parliament.

The Notwithstanding Clause enables legislations to override Charter protections, but they must do so explicitly – and risk political repercussions. For that reason it has been sparingly used.

The separatist Parti Quebecois invoked the Notwithstanding Clause in every single piece of Quebec legislation from 1982 to 1987, a wholly symbolic act to underline their opposition to the 1982 constitutional patriation.

Alberta Premier Ralph Klein faced a fierce backlash when he invoked the Notwithstanding Clause to limit his province’s financial liability to victims of a shameful – though-decades old – forced sterilization program. The firestorm of anger forced Klein to revoke the move. However, he did later use the Notwithstanding Clause in his government’s fight against same-sex marriage. And under Premier Brad Wall, Saskatchewan invoked the Notwithstanding Clause to designate certain public service positions as “essential”, and therefore strike-proof.

The Notwithstanding Clause has seldom been a “hot button” political issue. In the English-language leaders debate during the 2006 federal election campaign, in what many saw as a political non-sequitur, incumbent PM Paul Martin proposed a constitutional amendment to prevent the federal government from invoking the Notwithstanding Clause (the clause has never been used by the federal Parliament). The Clause had not until that moment been an issue in the campaign and, when the dust settled, it did not ever become one.

In the 2015 campaign, Gilles Duceppe, using identity politics in an effort to revive the fortunes of his Bloc Quebecois, proposed invoking the Notwithstanding Clause to ban the wearing of niqabs at citizenship ceremonies and at polling stations.

Image source: Wikimedia

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