There should be a political cost for using the clause; unfortunately, there isn\u2019t<\/p>\n\n\n\n
It\u2019s official: there is no longer a political cost for a government invoking the Notwithstanding Clause, meaning that rights will increasingly be under threat in this country. While Quebec had set the precedent in 2019 for pre-emptively invoking the clause, which can override a certain number of Charter rights for a period of up to five years, in order to stave off challenge to their so-called \u201cstate secularism\u201d laws that mostly discriminated against Muslim women and Sikhs, other provinces have now taken it up with wild abandon, and any sense of shame or reluctance to invoke the clause that existed since the Charter\u2019s creation in 1982 has now vanished.<\/p>\n\n\n\n
While Quebec\u2019s government set the standard, other provinces have run with it. In Ontario in 2021, Doug Ford invoked it to override certain election advertising laws<\/a> in order to make it harder for third-party interest groups to run their ads before and during an election, hobbling attacks on his party. That law was able to be struck down<\/a> at the Supreme Court of Canada because the majority of the court deemed it a violation of the right to vote, as opposed to freedom of expression, meaning the notwithstanding clause couldn\u2019t protect it. Ford\u2019s attempt to invoke the clause to force contracts<\/a> on school support workers in 2022 was eventually withdrawn after massive protests, but Ford is known to back down if protests get too big, because deep down, he wants to be the \u201cfun uncle\u201d and doesn\u2019t like it when too many people are mad at him. <\/p>\n\n\n\n In the fall of 2023, Saskatchewan invoked the clause to protect its bill<\/a> to force parental consent for students who want to change their pronouns or chosen names\u2014something that normally wouldn\u2019t be legislated at all\u2014and he recalled the legislature early to ram that bill through. That too has been challenged in the courts, but the Saskatchewan Court of Appeal ruled<\/a> this past August that while they can\u2019t strike down the bill because the notwithstanding clause has been invoked, they nevertheless found that courts can offer what is termed \u201cdeclaratory relief,\u201d meaning that they can still rule if the notwithstanding clause were not in effect, that law would be unconstitutional and would be struck down as a result. It\u2019s not much, but it\u2019s information for voters who can then go after the ruling party in the next election.<\/p>\n\n\n\n Two weeks ago, the Supreme Court of Canada agreed to hear<\/a> the appeal of this decision, which it will also likely hear at the same time as the appeal against Quebec\u2019s use of the notwithstanding clause to protect their \u201csecularism\u201d legislation. The reason why is because the Quebec Court of Appeal came to the opposite conclusion of Saskatchewan, that courts can\u2019t offer opinions on any legislation once the clause has been invoked, and now the Supreme Court has to decide which is the correct interpretation. The federal government\u2019s submission to the court in the Quebec case has already caused meltdowns<\/a> amongst the Bloc Qu\u00e9b\u00e9cois, the federal Conservatives and several conservative premiers, who all want the courts to shut up and not tell people that their laws are discriminatory.<\/p>\n\n\n\n Around the same time as this was happening, Alberta invoked<\/a> the notwithstanding clause to insulate its back-to-work legislation to end a teacher\u2019s strike, and they also did it by invoking time allocation in the legislature, rushing the bill through with no public input, no committee hearings and a mere hour of debate at each legislative stage, passing the bill at around 2:30 in the morning. While there has been talk of a general strike in the province in protest, nothing has materialized as of yet, but Smith is getting ready to invoke the clause again to protect her anti-trans legislation<\/a>, again so as to avoid any court challenges, while her apologists in both legacy and social media trot out lines like \u201cUsing the Notwithstanding Clause can\u2019t be unconstitutional because it\u2019s part of the constitution.\u201d <\/p>\n\n\n\n