What is the notwithstanding clause? An explainer on the rarely used provision

The Ontario government’s unprecedented use of the notwithstanding clause in order to proceed with plans to cut the size of Toronto’s city council has raised some questions about this rarely used section of the Charter of Rights and Freedoms.

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 notwithstanding clause has its roots in the 1960 Bill of Rights, largely seen as the precursor to the charter. The clause in its current form came about as a tool to bring provinces on side 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.

Constitutional lawyer Asher Honickman said the clause, which only applies to sections 2 and 7 through 15 of the charter, was part of the grand compromise that got the charter enacted in 1982.

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.

The Canadian Press

Note to readers: This is a corrected story. A previous version incorrectly said the notwithstanding clause applied to sections 2, 7 and 15 of the charter. It applies to sections 2 and 7 through 15.

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