Guidelines on the use of the notwithstanding clause
Invoking it was never meant to be easy.
Section 33 of the Charter of Rights and Freedoms was a compromise reached during negotiations around the text of the patriated Constitution aimed at preserving a measure of parliamentary sovereignty in a new era of entrenched rights interpreted by our courts.
But its use – by express declaration, renewable every five years – was supposed to carry a political cost for governments invoking it.
This is why the notwithstanding clause’s recent return to the headlines has critics expressing concern again that normalizing its use will undermine the Charter and render it meaningless.
For that reason, the CBA’s Constitutional and Human Rights Section is sponsoring a resolution at this year’s AGM to urge the federal and provincial governments to establish guidelines for the use of section 33.
“What the Section is really responding to is the normalization of the use of Section 33 without having even tested the proposed legislation in the courts,” says Cheryl Milne, the director of the Asper Centre for Constitutional Rights at the University of Toronto.
Over the last 18 months, provincial governments have invoked the clause – or threatened to – in legislation aimed at maintaining electoral boundaries set during a municipal election (in Ontario), prohibiting the wearing of religious clothing and symbols by public employees (in Quebec), and disallowing conscience or religion-based objections to mandatory vaccination (in New Brunswick).
Milne, the mover of the resolution, points to the “reasonable limits clause” under Section 1 that the government can rely on to justify a limitation on certain Charter rights. “Why shouldn’t the proposed legislation be put to that test, as opposed to going straight to the nuclear option, which is Section 33?”
If the notwithstanding clause is being used pre-emptively, the courts cannot weigh in and interpret the nature of the limitation and therefore, cannot hold the government to the same account in terms forcing it to justify it, says Milne.
“We’re particularly concerned about the use of the notwithstanding clause to override minority rights in the current context with the Quebec legislation being challenged in the courts, or even with the New Brunswick legislation, which arguably doesn’t need Section 33 to be implemented,” says Milne.
The Canadian Bar Association has long supported the repeal of section 33 or, failing that, imposing guidelines for its use. One of the nine resolutions up for discussion at this year’s AGM would see the CBA urge the federal and provincial governments to establish such guidelines. Among the requirements would be a two-thirds majority vote in the legislature or Parliament, meaningful and transparent public consultation; and prohibiting the use of the clause pre-emptively without prior consideration of the proposed legislation by the courts.
In a minority or small majority Parliament, says Milne, a two-thirds majority vote at least guarantees that the government must engage the opposition parties.
For more on this topic and to share your views on the proposed resolution, please visit our discussion board.