Newspaper article The Canadian Press

A Brief History of Canada's Notwithstanding Clause and How It Came to Be

Newspaper article The Canadian Press

A Brief History of Canada's Notwithstanding Clause and How It Came to Be

Article excerpt

A look at the notwithstanding clause

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REGINA - The Saskatchewan government says it will invoke the notwithstanding clause of the Charter of Rights and Freedoms so it can keep funding non-Catholic students attending Catholic schools. Premier Brad Wall casts it as a move to protect the rights of parents and students to choose schools.

The notwithstanding clause has long been one of the most controversial aspects of the charter. While some argue the clause is a healthy part of a Constitutional democracy, others disagree. Former prime minister Brian Mulroney once said, with it, the charter was "not worth the paper it's written on."

Here is a refresher on what has been referred to as the "sleeping giant" of Canada's Constitution:

WHAT IS IT?

The notwithstanding clause is Section 33 of the Charter of Rights and Freedoms. It gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.

ITS ORIGINS

While the notwithstanding clause is often seen as a last-minute insert to get provinces onside with the Charter of Rights, Eric Adams, research fellow at the University of Alberta's Centre for Constitutional Studies, notes that the charter's precursor, the Canadian Bill of Rights, had a similar provision. "The provinces are not inventing a new mechanism to get around rights," Adams says. "They are drawing on this existing Canadian tradition that says that we don't have to have all-or-nothing rights-protecting instruments. In fact, we might want to retain some flexibility for governments to respond if they disagree with the kind of rights interpretation that a court might provide." With charter negotiations ramping up in the early 1980s, then-prime minister Pierre Trudeau didn't seen the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts. …

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