Robust Public Debate Needed on Use of Notwithstanding Clause

  • November 18, 2022
  • Robert Leckey. Originally published on Policy Options

Increasing provincial use of the notwithstanding clause in the Canadian Charter of Rights and Freedoms has made headlines recently, although Ontario Premier Doug Ford backtracked dramatically in the latest case. Just days after using the device to shield from Charter challenge a law that banned strikes by a group of education workers, his government repealed that law.

Meanwhile, In Quebec, the appellate court has heard arguments in litigation relating to that province’s secularism law, Bill 21. Lawyers for several groups urged the judges to revise the understanding of what a legislature must do to shield a law from Charter challenge.

In my view, Canada is overdue for a robust public debate about the circumstances in which using the notwithstanding clause is legitimate. I choose my words deliberately. By a legitimate use of this mechanism in our Charter, I mean one that conforms with political morality and is justifiable by sound reasons.

Legitimacy is different from legality. Legality concerns the conditions that a legislature must satisfy for its recourse to the notwithstanding clause to be valid, granting the law in question immunity from the possibility of being struck down for violating rights. The Supreme Court of Canada spoke to those conditions in its Ford v Quebec decision some 35 years ago. It took a formal approach, ruling that it is sufficient if the legislature lists the sections of the Charter from which it is derogating, without any reason or indication of why it does so.