So with current events in Ontario and the frequency with which this clause is being invoked I feel it’s a good idea to devote a post entirely to the Notwithstanding Clause. This won’t be a very long post as it’s a fairly simple clause.
The Notwithstanding Clause refers to Section 33 in the Charter of Rights and Freedoms and was added as a way to convince certain provinces (mostly Saskatchewan and Alberta) to sign on to the Charter.
The Notwithstanding Clause allows both federal and provincial governments to pass legislation that would otherwise violate certain Charter rights. The argument that the legislation is unconstitutional can’t be used if it’s one of the rights the clause is allowed to override.
Restrictions
There’s only two restrictions to using the Notwithstanding Clause. First, as mentioned previously, only certain rights can be overridden by the Notwithstanding Clause:
- The freedom of conscience and religion
- The freedom of thought, belief, opinion, and expression including freedom of the press and other media of communication
- The freedom of peaceful assembly
- The freedom of association
- The right to life, liberty, and security of the person and the right not to be deprived of these except in accordance with the principles of fundamental justice
- The right to be secure against unreasonable search or seizure
- The right not to be arbitrarily detained or imprisoned
- The right on arrest or detention to be promptly informed of the reasons for the arrest, to retain counsel without delay (and to be informed of this), to challenge the validity of the detention and be released if it’s deemed to be unlawful
- Anyone charged with an offence has the right:
- to be informed without unreasonable delay of the specific offence
- to be tried within a reasonable time
- to not be compelled to be a witness in proceedings against that person in respect of the offence
- to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal
- to not be denied reasonable bail without just cause
- except when the case involves military law, the right to a trial by jury where the maximum punishment is imprisonment for 5 years or more severe
- to not be found guilty on account of an act or omission unless it was an offence at the time it happened (including international law)
- to not be tried and/or punished again for an offence once the case is resolved
- to benefit from the lesser punishment if the punishment for the offence changes between the court case beginning and the sentencing
- The right not to be subjected to cruel and unusual treatment/punishment
- The right to avoid self-crimination, with the exception of perjury proceedings
- Access to an interpreter in any proceedings where you don’t understand or speak the language the proceedings are happening in, or are deaf
- The freedom, under the law, from discrimination based on race, national/ethnic origin, colour, religion, sex, age, or mental/physical disability (exception in cases where a law/program/activity would improve conditions for an individual disadvantaged because of these)
The second restriction for the Notwithstanding Clause is that its protection from the courts only lasts 5 years. A government is allowed to renew the protection for another 5 years as often as they want, but if they don’t then the legislation can be taken to court for being unconstitutional and struck down.
Opinion
So I’m going to put my personal opinion down here, because I’ve got some pretty strong feelings regarding this clause.
Honestly I feel that this clause should be a death sentence for any government that uses it. There’s been plenty of cases of governments trying to trample our Charter rights in the past, but they all (eventually) get to the courts and are struck down. (Or are deemed to not go against our rights, but I choose to have faith in our court system. These are the people tasked with interpreting the Charter and considering the implications of any laws that affect it, at a fundamental level if we can’t trust them then the system is completely destroyed) This, however, lets a government simply ignore our rights with zero oversight. There are no checks and balances to the Notwithstanding Clause, when a government decides to use it they win.
The only balance against it is us refusing to give them another term. We cannot allow the use of this clause to become normal, we cannot allow them to set a precedent to using it.
In Ontario, at the time of this post our government has used this clause three times. They’re normalizing its use, and they’re going to continue using it. And if we allow them to continue using it for whatever dumb reason they want then every government after them is going to do the same. Take another look at the list of rights that can be casually ignored by a government willing to use the Notwithstanding Clause. Pick the party you hate the most and ask yourself, which of these rights would be most convenient for them to ignore? If we allow this to be used unpunished, sooner or later it’s going to be used against you.
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