Justin Trudeau is (rightly) courting a fight over the notwithstanding clause
Prime Minister Justin Trudeau stirred up a constitutional hornet’s nest this week when he said that his Justice Minister is looking for ways to curb the chronic overuse of the notwithstanding clause by some provinces, and that Ottawa might ask the Supreme Court for a reference on the matter.
The clause, Section 33 of the Constitution, allows Parliament and the provincial legislatures to override a long list of Charter rights – everything from freedom of expression to the presumption of innocence and protection from arbitrary arrest – when passing legislation. But the breaking point for Mr. Trudeau apparently came one province west of there, in the form of the failed effort last fall by Ontario Premier Doug Ford to include the notwithstanding clause in back-to-work legislation targeted at school workers who were threatening to walk off the job.
There is a debate about whether Section 33 should be invoked only after a court finds an existing law has violated the relevant sections of the Charter, or whether the common practice of inserting it into bills pre-emptively, in order to inoculate them against court challenges, is reasonable., when he said, “[Section 33] was meant to be a last word for a legislature to exercise parliamentary sovereignty.
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