The only solution to the ominous threats posed by the increasing use of the notwithstanding clause is to amend Canada’s Charter of Rights and Freedoms.
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Articles on Notwithstanding clause
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There’s no equivalence between invoking the Emergencies Act and the pre-emptive invocation of the notwithstanding clause, which guts Canadian democracy and nullifies the Charter.
A Supreme Court reference on the notwithstanding clause could look beyond the highly polarized reactions to any particular law and get at the heart of the issue.
Frustration about unsettled bargaining that predates the pandemic could get channelled into pronounced resistance from educational workers during the coming months.
The Ontario government’s latest use of the notwithstanding clause is at odds with its stated intention to keep kids in school amid a labour dispute — and at odds with the heart of labour relations norms.
The notwithstanding clause is both historically appropriate and democratically desirable. Excising it would make our Charter of Rights and Freedoms more American. Is that really where we want to go?
Provincial regulations have major implications for the freedom of expression exercised by individuals and organizations in Ontario in the months leading up to the June election.
By paying greater attention to the originally intended application of the Canadian Constitution’s notwithstanding clause, along with the diversity of lawmakers in Canada, there’s a better path forward.
Ontario has historically been the province in Confederation most concerned about buoying Ottawa and limiting its own relative power for the sake of national unity. Doug Ford puts that legacy at risk.
Threats by two of Canada’s newest premiers to invoke the notwithstanding clause send a clear message to the federal Liberals: Ontario and Quebec do not play by the rules.
Ontario’s recent threat to use the notwithstanding clause to reduce the size of Toronto’s city council is a reminder that municipalities have little protection under the Constitution.
Doug Ford’s wielding of the notwithstanding clause is part of a broader opposition to judicial activism that has developed among right-wing politicians and academics in the post-Charter era.
Top contributors
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Instructor, Legal Studies and Criminology, Kwantlen Polytechnic University
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Associate Law Professor, University of New Brunswick
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Assistant Professor, Political Science, University of Windsor
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Assistant Professor, Faculty of Education, Brock University
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Research Fellow, Leadership and Democracy Lab, Western University
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Adjunct professor, Environment and Sustainability, University of Saskatchewan
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Professor of Law, L’Université d’Ottawa/University of Ottawa
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Research Scientist, Political Science, Western University
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Sessional Instructor, Political Science, University of Guelph
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Associate Professor, Labour studies, Brock University
