You may have heard the term “notwithstanding clause” thrown around news stories of late, but what exactly is the clause and what is its purpose?
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“This is sometimes called ‘the override power,’ and essentially it permits laws to override Charter rights,” explained Sarah Burningham, assistant professor at the college of law at the University of Saskatchewan.
The term has been used most recently after Saskatchewan Premier Scott Moe mentioned last week that the notwithstanding clause is one of the “tools” the provincial government is considering to keep in place legislation that requires parental permission for kids to use different names or pronouns at school.
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Burningham said the clause allows governments to enact laws regardless of whether they violate certain human rights, but noted that not every right within the Canadian Charter of Rights and Freedoms can be overridden.
The Government of Canada website says rights that can be affected include fundamental freedoms, legal rights and equality rights, but the clause cannot affect democratic rights, mobility rights and language rights.
Burningham said once the clause is invoked, it immunizes the law it applies to from Charter review.
The usual process, Burningham explained, starts with the government enacting a law. “If it potentially violates rights, claimants can take the government to court. They can go to court and argue this law violates their Charter rights, and then a judge will weigh in.”
She said the notwithstanding clause bypasses that process.
“Judges can’t look at the law now. They can’t strike it down if it doesn’t comply with the constitution.”
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She said the “check” around the notwithstanding clause comes down to the ballot box.
“If people aren’t happy with the use of the notwithstanding clause, if they aren’t happy with how the government has violated rights, they can vote them out.”
She said the clause is designed with the political check in mind, explaining the override expires after five years of it being implemented, and needs to be re-enacted if governments want to keep the override in place.
Burningham said the clause tries to strike a balance between rights protection and concerns around giving your elected representatives the last word on complex policy and moral issues, as well as rights issues.
She said the clause doesn’t have any real legal limitations on its use, noting the only real limitation is the ballot box.
“The more we see the notwithstanding clause being used, the less controversial it seems and the less effective that check might be.”
She said if it’s used routinely, the public will get less worked up about it and we are less likely to see it become an election issue.
“We have a variable history with the notwithstanding clause since 1982 when the Charter was enacted.”
Burningham explained that Quebec has used the clause frequently, including right after the Charter was enacted, adding use of the clause among other provinces has been much less frequent and contentious, but is growing.
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“We’ve had points where it’s been brought up, but really we’re seeing a significant use of it in the last few years.”
She said the norm against its use seems to be weakening.
Burningham said the clause can be implemented quite quickly, but it does have to go through legislative debate.
The clause can be resorted to at any time, with Burningham saying it could be enacted at any point during a controversy, or after a court case or appeal.
She said best practices with the clause would include public debate, and the government explaining why the clause is being implemented — “the government defending it, explaining why they’ve got to violate rights to put forward this policy.”
Burningham suggested that if a government feels that it needs to implement the notwithstanding clause on a law, it should first take it through the usual processes so the government can articulate to the public why the policy is needed.
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Premier Scott Moe said on Sept. 13 that he would consider using the notwithstanding clause, as well as other different “tools,” to keep the legislation in place.
The province implemented legislation that required parental permission for kids to use different names or pronouns at school.
“The notwithstanding clause is present for a reason — so that duly elected governments can represent their constituents when necessary,” Moe said.
The new rules and regulations faced scrutiny from many organizations, with the Saskatchewan Children’s Advocate announcing that it would be reviewing the legislation to see if it conflicted with the Charter of Rights and Freedoms.
That review was released on Friday, and it stated that it did violate human rights laws.
“We agree with the government’s desire to place a high importance on the involvement of parents and guardians in education,” said Advocate Lisa Broda, who conducted the review. “However, this objective can be achieved without imposing such strict rules around consent, which could result in a violation of a young person’s rights under provincial, constitutional, and international human rights laws.”
Broda claimed that the age requirement of 16 isn’t fair to students because it does not demonstrate the individual’s capabilities.
“Many young people under the age of 16 will have the capacity to make this type of decision. Giving them the chance to demonstrate capacity is an important step in accommodating their right to their gender identity.”
— with files from Brooke Kruger and The Canadian Press