What is the notwithstanding clause, again?

The notwithstanding clause explained Much maligned and much utilized by Quebec governments, a legal expert breaks down how the notwithstanding clause works.

MONTREAL — The controversial notwithstanding clause (section 33 of the Constitution Act), has been debated incessantly in Canada and particularly in Quebec since its inception in 1982, following the patriation of the Constitution.

Why? Because it allows a provincial government to disregard certain rights and freedoms, knowing those guarantees are likely to get in the way of the law it would like to pass.

“The notwithstanding clause is a kind of escape hatch that allows a government to pass a law that may not respect those rights and freedoms but instead of being struck down by courts it will have its effects anyway. It will be an enforceable law,” explained Robert Leckey, Dean of McGill University Faculty of Law.

Put a different way, the notwithstanding clause is a mechanism for the legislature to go ahead and legislate, despite those guarantees - or notwithstanding them.

The notwithstanding clause can’t be used to override all guarantees in the charter, but when invoked it does allow the government to ignore a large swath of core rights.

“It’s possible for there to be a law protected by the notwithstanding clause that will violate freedom of expression, freedom of religion, [or] the right to be free from discrimination. A number of the core protections can be temporarily pushed aside if the legislature decides that it wants its law to operate anyway,” said Leckey.

And its power extends to the courtroom. The notwithstanding clause prevents the court from striking down the law, even though judges are usually the designated “guardians of those protected rights,” Leckey explained.

However, when it comes to other guarantees, the right to mobility, the right to vote, and the minority language schooling protections in the Canadian charter, among others - the notwithstanding clause has no clout.

That’s why in the recent decision on Quebec’s law on secularism, Bill 21, “the court was able to declare that the law did not apply to the English Montreal School Board even though the law was protected by the notwithstanding clause,” Leckey explained.

The government does have to follow one key rule when it comes to this unique get-out-of-jail-free card and must use it in a law, not in a decree or a mention on its website. The legislative tactic can only be employed for a maximum of five years at a time.

“The idea of the five years is that there will be a general election at least once in every five-year period, so a legislature having used the notwithstanding clause will have to face the voters,” the law professor said.

If the government is reelected, it can renew the notwithstanding clause to preserve its law.

THE BACK STORY

The notwithstanding clause originated in the early 1980s when the provinces were negotiating constitutional reform with the federal government, then led by Pierre Trudeau.

At the time, some of the premiers weren’t comfortable with the idea that provincial laws could be struck down by the courts for violating the new charter of human rights and freedoms being proposed.

The inclusion of a notwithstanding clause, served as “a compromise that secured the agreement of the provinces,” said Leckey, who added that Quebec has used the notwithstanding clause more than other jurisdictions.

Quebec’s premier has signalled he may go that route again when he tables a bill this spring expected to contain an in-depth review of the province’s language law.

“If we really believe in French as the common language, if we really believe that this language is vulnerable,” Francois Legault said recently, “we have to take action, and in some cases, we have to use the notwithstanding clause.”