In this thread discussing gay marriage in Canada (specifically Toronto), there is mention of the “Notwithstanding Clause.” Can any Canadians out there expand on what this means, how the power of the clause is exercised, and examples of how its been used in the past? In the history of the clause, does the gov. or the court have the final say over when the clause is properly exercised? Finally, how to “Notwithstanding Clause” disputes get resolved?
In the US we have checks and balances to ensure that no branch of the government (including the court) has too much power…is it the same in Canada?
Thanks.
db
P.S. I now may be looking forward to a trip to Toronto this summer, depending on this whole “Notwithstanding” issue.
… waits for someone more qualified than me, like a lawyer and not just an interested amateur, to open the thread …
In the mean time, maybe you’d like to read up on the Charter of Rights and Freedoms, which we have instead of the Bill of Rights, and which many Canadians think is just the greatest thing since sliced bread, and the major difference between our constitutional/legal system and America’s.
Note these rights (conscience, religion, press, discrimination etc) are not absolute but “subject … to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This means that sometimes judges can deny Charter (individual) rights in favour of collective rights (“free and democratic society”). This is of course open to heavy interpretation but it means they can basically say “Yes, you do have the right do do X, but this is trumped by the right of others to live in a society that is free of people doing X.”
Not entirely certain how the Notwithstanding clause enters in but I know it does. I’ll find out tonight.
But I can assure you that the notwithstanding clause will not affect your trip to Toronto. If you can make it in the next few weeks, the Pride Parade is a pretty great party. Just don’t go to Alberta if you want to marry your same-sex partner. The mountains are pretty but you can see them from the BC side, too.
The not withstanding clause allows parliaments to trump courts or to allow for sufficient time to amend laws to come into accordance with the charter or to avoid the legal loophole that allowed the judgment in the first place.
Example 1
Quebec Bill 101 (language) was deemed unconstitutional by the SCC but the Quebec Legislature invoked the not withstanding clause to avoid allowing equivalent rights to the English language (somewhat understandable when you’re 6 million people in a 300 million pond)
Example 2
Production of child pornography for personal consumption was considered protected by the charter. There was a massive outcry from the public demanding the NWC be invoked to prevent the defense being used by other child pornographers.
Clause 94 of the Constitution Act, 1867, reads as follows:
If I’m reading this correctly, the provincial legislatures have the right to supersede laws relative to property and civil rights passed by the Parliament of Canada as regards their own province.
IANAL, I’m going from my Grade 13 law and a lot of reading.
The Notwithstanding clause usually refers to section 33 of the Charter
Grey’s got it right, the notwithstanding claus allows the gov’t to keep a law on the books despite the fact that it’s been found to violate a persons fundamental rights.
What I don’t understand is how Ralph Klein would go about invoking Section 33 to keep gays/lesbians from marrying in Alberta. The definition of marriage has always been federal- For Alberta to pass a law defining marriage solely as the union of one man and one woman would exceed their jurisdiction. A province can’t pick and chose which statutes they’ll follow. The only provincial responsibility here is to register marriages which meet the federal criteria. Any ideas how they’d do it?
While the definition of marriage is federal, handing out marriage licenses, and deciding who is allowed to perform marriages (and where they can perform them) is a provincial matter.
So, Alberta could pass a law (if there isn’t already one on the books) saying only guys and gals can get licenses, then invoke the notwithstanding clause to keep it on the books.
Of course, he’d alienate a lot of people under 35 in his province, but he’s already pissed 'em off so it doesn’t matter.
BTW, the notwithstanding clause can’t be used to override every law. It doesn’t apply to voting rights, for instance
Also after 5 years the NWC must be invoked again, it does not removes the obligation on the province/feds to deal with the court’s ruling. They simply manage to pu it off.