The notwithstanding clause in the Canadian constitution is viewed by many voters as an option to get out from federal control in the provinces.
The clause is not the catch-all nuclear option some believe it is.
This clause was introduced as a safety valve to get all the provinces on board when the constitution was repatriated from the United Kingdom in 1982.
Provinces agreed to the new Charter of Rights in the constitution if they had this escape alternative.
No one then assumed it would be used much, certainly not for some of the matters that have come up.
Provinces are able to override federal jurisdiction in certain Charter rights — fundamental rights, equality rights and legal rights — limiting the application.
Never used by the federal government, the notwithstanding clause has been invoked seven times by premiers.
On five of those occasions the laws invoking the clause were never passed, being settled by court rulings or by revised laws.
These incidents involved Quebec limiting use of English-language signs, later replaced with a new law; a Yukon land planning issue that never passed into law; Saskatchewan opposition to back-to-work laws that were settled by a court ruling; Ontario used the clause to reduce the size of the Toronto council, but revised the bill; and Alberta’s law on marriage being between a man and a woman, also settled by a court ruling.
In 2017 the Brad Wall government invoked the notwithstanding clause to settle a school dispute. A town in northeastern Saskatchewan decided to keep its school open by converting it into a Catholic School.
The public-school division took the matter to court in a lengthy and expensive lawsuit that wound up in the Supreme Court of Canada.
The ruling was a Charter of Rights matter, stating that no provincial funding could be made for non-Catholic students attending Catholic schools. The judgment affected thousands of students in the province and threatened to disrupt funding of education.
Wall invoked the notwithstanding clause to avoid the chaos.
And in 2018 Quebec’s Coalition d’Avenir government invoked the notwithstanding clause to allow a law prohibiting the wearing of religious symbols by public employees from civil servants to teachers and health care employees.
Neither the Saskatchewan nor Quebec use of the notwithstanding clause closes the matter.
An important piece of the notwithstanding clause limits the use for five years.
At that point the law contravening human rights is subject to renewal by the province or territory, giving opposition an opportunity to reverse the previous law.
The five-year limit requires the province or territory excluding basic rights to defend the issue regularly and keeps the issue alive.
Ron Walter can be reached at [email protected]
The views and opinions expressed in this article are those of the author, and do not necessarily reflect the position of this publication.
