“The gun registration program is like a smoldering ember burning out of sight ready to burst into a destructive forest fire,” Laverne Isaac wrote to this newspaper earlier this year. He proposed that each provincial government use the notwithstanding clause and “boot the federal program out of the country.”
At the same time, some opponents of same sex marriage have argued that the federal government should use the notwithstanding clause to legislate that marriage is a union of a man and woman regardless of the equality provisions of the Canadian Charter of Rights and Freedoms.
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What is the notwithstanding clause, when can it be used and what is its history?
Section 33 of the charter, which is part of our national constitution, provides that Parliament or a provincial legislature may declare that it is using the notwithstanding clause to prevent some other rights from being applied.
In 1981, in the federal-provincial negotiations leading to the adoption of the new constitution, a number of provinces including Alberta and Saskatchewan expressed concern that the charter gave too much power to the courts. The courts would interpret the meaning of the general principles found in the charter.
To answer that concern, prime minister Pierre Trudeau and the provincial premiers agreed to include the notwithstanding clause to override a court ruling.
The clause can only be used to override other rights under the charter for five years. However, it can be renewed for successive five year periods.
To date, the clause has not been used extensively. Quebec has used it 13 times, Saskatchewan used it in 1984 to uphold back-to-work legislation and Alberta used it in 2000 declaring that marriage is a union of a man and woman. Under the five year rule, Alberta’s use of the notwithstanding clause expired earlier this year. Alberta recently announced it will not renew this declaration, accepting that the definition of marriage is within federal domain.
Certain rights including the right to vote, the right to work and travel across the country and official language rights cannot be pushed aside by the notwithstanding clause.
Governments can only use the notwithstanding clause within their own scope of authority. In short, a province can declare that its law will apply notwithstanding the charter, and the federal government can do likewise. A provincial government cannot use that clause to render a federal law ineffective; likewise, the federal government cannot declare a provincial law invalid.
Our constitution gives legislative juris-
Supreme Court of Canada has ruled that the federal government had the sole authority to define marriage.
So too, in 2000 under a challenge started by Alberta, the Supreme Court ruled that gun control laws were criminal laws and solely within the authority of the federal government.
Among the rights that can be temporarily suspended by the clause are: section 2, which guarantees freedom of speech, thought, belief, assembly and association and freedom of the press; sections 7Ð14, which deal with legal rights including the right to life, liberty and security, freedom from unreasonable search and arbitrary detention, a right to be informed of the reasons for arrest and to be informed of the right to a lawyer upon arrest, a right to a fair trial, the right not to have to testify against yourself and the right to an interpreter; and section 15, which guarantees equality under the law.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
