Anyone telling you that the notwithstanding clause was never meant to be used, or only applied in a certain ways, is lying to you.
In fact, those claims, so prevalent in our media and commentary on the Charter, are the exact opposite of what the historical record shows.Sign up to receive daily headline news from the Ottawa SUN, a division of Postmedia Network Inc.By clicking on the sign up button you consent to receive the above newsletter from Postmedia Network Inc. You may unsubscribe any time by clicking on the unsubscribe link at the bottom of our emails. Postmedia Network Inc.
The notwithstanding clause – which isn’t unconstitutional or against the Charter because it is literally section 33 of the Charter – isn’t allowed to be used against democratic rights, mobility rights or language rights. Those are the guardrails on the notwithstanding clause that the people who negotiated the constitution, the Charter and the clause agreed to.
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LILLEY: Notwithstanding clause included in Charter to be usedAnyone telling you that the notwithstanding clause was never meant to be used, or only applied in a certain ways, is lying to you.
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Closing a Charter loopholeOAKVILLE, ONT.—Prime Minister Justin Trudeau once said of the notwithstanding clause (Sec. 33 of the Charter of Rights and Freedoms.) “It’s basically a loophole that allows a majority to override fundamental rights of a minority.” Of course, lots of people feel that way. After all, the notwithstanding clause gives governments the power to overturn any court decision dealing with Charter rights. So, does that mean the people who crafted the Charter 40 years ago were somehow negligent for allowing that “loophole” to exist? The answer is no. In fact, I’m certain they sincerely believed a safeguard existed which would ensure that governments would never abuse the notwithstanding clause. That safeguard was public opinion. In other words, they envisioned the notwithstanding clause as an “emergency” button, which politicians would only push with extreme rarity, if at all, since they expected the public would react with outrage any time a leader dared to assail Charter-guaranteed rights. It’s a good theory to be sure, but unfortunately it often hasn’t worked out that way in practice. For instance, sometimes public opinion actually supports a government invoking the notwithstanding clause. This was the case in Quebec where Premier François Legault used the clause to “court-proof” Bill 21, a controversial law his government enacted which bans the use of religious symbols for those working in government. Civil libertarians may have opposed that law, but voters in Quebec supported it. Other times, the public simply doesn’t care one way or the other when a government turns to the notwithstanding clause. This was the situation last year in Ontario, when Premier Doug Ford implemented the notwithstanding clause to overturn a court ruling which had nullified part of the province’s election legislation, limiting “third-party” advertising. Many saw this move as nothing but a cynical attempt by Ford to silence his critics. As then-NDP leader Andrea Horwath charged, “it’s obviously a mo
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LILLEY: Ontario doesn't need a mask mandate and COVID isn't the problem in children's hospitalsLook at the facts, look at what works, look at other jurisdictions \u002D there is no need for a mask mandate in Ontario.
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LILLEY: Ontario doesn't need a mask mandate and COVID isn't the problem in children's hospitalsLook at the facts, look at what works, look at other jurisdictions \u002D there is no need for a mask mandate in Ontario.
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Unions planned nationwide protests to counter Ford’s use of notwithstanding clauseUnion leaders discussed temporarily shutting ports, Confederation Bridge, before Ontario Premier backed down
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We must shout from the rooftops when politicians come for our Charter rightsShame isn’t preventing governments from invoking the notwithstanding clause anymore, but fear of voters might
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