Ahhhhhhh fuck
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i’m gonna mc-lose it
If you think this is bad let me tell you about the “Notwithstanding Clause” in our fucking constitution that Conservative politicians have fallen in love with the last few years…
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y e a . , h
Now, I’ll preface this by saying that, with Trudeau having stepped down of leader of the LPC and having stated that he’ll resign as PM basically as soon as practicable after a new leader is elected, there’s now a slim chance that we won’t end up with an overwhelming Tory majority under Poilievre,
but for the non-Canadians on here, let me briefly explain the Notwithstanding Clause, also known as section 33 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 a. s 33 states the following:
33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
So what rights do sections 2 and 7–15 confer? Well,
- 2: freedom of…
- (a): conscience and religion
- (b): thought, belief, opinion, expression, the press, and other media
- (c): peaceful assembly
- (d): freedom of association
- 7: life, liberty, and security of the person (unless deprived “in accordance with the principles of fundamental justice”)
- 8: no unreasonable search/seizure
- 9: no arbitrary detention/imprisonment
- 10: the right on arrest or detention to…
- (a): be informed of why
- (b): to retain counsel immediately (and be informed of said right)
- (c): habeas corpus; basically, having a judge review the validity of the detention and order release if it’s not valid
- 11: basically every right related to criminal proceedings
- 12: no cruel and unusual treatment or punishment
- 13: right for one’s evidence in court to not be used against them in other proceedings
- 14: right to an interpreter in legal proceedings if you don’t speak (English/French) or are hard of hearing
- 15: equality rights re.: race/colour, national/ethnic origin, “sex” (in which gender, sexual orientation, and transness are considered “analogous grounds” per case law since the Charter entered force), age, or (dis)ability (and also a clause explicitly stating that affirmative action programs are not against s 15)
So, in short, the Notwithstanding Clause can enable the federal government or any provincial government to basically do fucking anything as long as it doesn’t destroy the procedural integrity of elections or the legislature.
Now, in the case of provinces, its utility is a bit limited — due to Canada’s division of powers, historically, provinces have not been able to criminalise abortion (criminal law is essentially exclusively in federal jurisdiction) or prohibit same-gender marriage (because marriage, unlike every other aspect of family law, is exclusively in federal jurisdiction). However, the federal government, thanks to principles like “peace, order, and good government” (a catch-all for the feds overriding provincial jurisdiction, for better and worse) and the fact that they have exclusive jurisdiction over criminal law? They could basically do anything via the Notwithstanding Clause, if they got creative enough.
So, in short, that nuclear option is just kinda there in Canada’s constitution. It’s historically largely been used by Québec to protect the primary status of the French language in the province (and also sometimes for buttressing the form of racist, Christian-flavoured “secularism” that seems to be popular in white Francophone polities), but its most recent use was by Saskatchewan for reasons that almost entirely amount to state-enforced outing of queer children.
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