Using the notwithstanding clause: Too easy?

By Yves Faguy May 9, 20179 May 2017

Using the notwithstanding clause: Too easy?


Every so often, one of Canada’s favourite constitutional pastimes – debating the frequently decried, sometimes beloved, section 33 of Canadian Charter of Rights and Freedoms – comes back in vogue.

Last week, Andrew Coyne argued against governments in Canada using the notwithstanding clause to override certain Charter provisions.  Though it has rarely been invoked over the last 35 years – and never by Ottawa  – his main objection is that it dilutes the rights and freedoms promised by our constitution. And he worries about repeated use becoming easier and easier with each transgression: 

Notwithstanding is not the emergency safety valve its advocates pretend, but a bottle marked “drink me”: its existence is a standing invitation to use it. Even in repose it is a silent rebuke to the Charter, for it suggests that its guarantees are not guarantees at all, but merely guidelines, contingent at all times on the mood of the government of the day.

Léonid Sirota also took on the issue, jumping off a recent Saskatchewan decision, which found that the province’s funding of non-Catholic students in Catholic schools violated religious liberty and equality guarantees. The province’s premier, Brad Wall, promised to override the Charter to keep the funding in place.  Sirota calls out his government for being hypocritical on two counts; first, it is the one responsible for limiting school choice in the first place by failing to fund rural schools properly, and second, it has options, albeit costly ones, that are not offside constitutionally.  Ultimately, Sirota charges, the province is driven by narrow fiscal considerations:

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

But Gerard Kennedy pushes back against the two, pointing to the impracticalities resulting from certain court rulings:

But one should not be too swift to condemn the Wall government’s invocation of the notwithstanding clause. The declaration of invalidity gives parents and policymakers only a year of certainty. Invoking the notwithstanding clause gives five years. As such, the Catholic school board’s choice to appeal Justice Layh’s decision is appropriate as supplementary, rather than alterative, to the invocation of the notwithstanding clause. This gives both the certain “five-year stability” of the notwithstanding clause, and the potential “permanent stability” of the appeal. The appeal may technically be moot but given the importance of the issues, appellate courts will very likely hear it.




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