# Not standing with Canadian Charter Notwithstanding **URL:** \ **Category:** Politics & Elections\ **Created:** [June 15, 2021, 12:47pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324 "2021-06-15T12:47:16Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [May 29, 2022, 4:44pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/81 "2022-05-29T16:44:29Z")
> [@Sam\_Stone](#): > > Conservatves do not want a federal ban on abortion. > **[Mitch McConnell Acknowledges a National Abortion Ban Is “Possible” if ‘Roe’...](https://www.vanityfair.com/news/2022/05/mitch-mcconnell-acknowledges-a-national-abortion-ban-is-possible-if-roe-is-overturned)** > > The top Senate Republican explained that a federal abortion ban is on the table in his most explicit comments to date about what the SCOTUS draft leak could mean going forward. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [May 29, 2022, 5:37pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/82 "2022-05-29T17:37:36Z")
> [@velomont](#): > > The thing that I find really frustrating and sad about all of this Quebec’s bill 96 and related philosophies is that it is founded on an outside-Montreal pathetic xenophobia that, IME, isn’t shared in Montreal by Montrealers. > > My wife and I lived here in the early '90s for a few years and we loved the place. We moved back in 2013 and if this crap was stirring at the time it wasn’t that obvious at the time. Montreal is incredibly divers and open minded and, because of bill 101, most Montrealers under 40 or thereabouts are fluently bilingual, to the extent that I often see groups of a few people fluently conversing and switching languages mid-sentence such that you can’t really tell who is Anglo or Franco. There’s even a word for it that is often used - Franglais. And in the city (or on the island) almost everyone’s cool with it. > > But a small gang of narrow-minded, fearful, xenophobic “nation builders” are doing their utmost to torpedo their province’s economic engine. > > Yeah, I’m pissed off and we’re bailing as soon as we can - leaving what could be one of the best cities in the world. I used to live in Montreal and I fully agree with you. It’s a beautiful, multicultural, vibrant city with gorgeous architecture and natural beauty and really great restaurants and a culture that is hard to specifically characterize but is just wonderfully unique in the world. It’s been suggested – during both of the two separatist referendums – that if Quebec ever votes to secede from Canada, that Montreal should secede from Quebec and link up with Canada on its own. I think that’s a fine idea. Anyway, I don’t blame you for planning to bail. You’ll be very welcome here in Ontario, although the influx of immigrants and refugees from places like Syria and Quebec have really driven up housing prices. My post in another thread about Bill 96: > [@Quebec's new language law](https://boards.straightdope.com/t/quebecs-new-language-law/965272/8): > > As I said in the other thread, I suspected that the comment you had made was about Bill 96. TBH, this bill goes a lot further than I had thought after briefly reading about it, but as the article says, it remains to be seen how many of its provisions are going to be enforced. The idea that the Language Police will, Gestapo-like, raid businesses and arbitrarily seize computers and cellphones and the like sounds a bit far-fetched. OTOH, the Language Police have surprised many before with their … ---
**Author:** ![velomont](https://avatars.discourse-cdn.com/v4/letter/v/8491ac/32.png) [@velomont](https://boards.straightdope.com/u/velomont)\ **Post date:** [May 29, 2022, 6:43pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/83 "2022-05-29T18:43:46Z")
> [@wolfpup](#): > > Montreal should secede from Quebec and link up with Canada on its own And in any discussion about this, the sovereigntists vehemently fight it. That shouldn’t come as a surprise, though, as an independent Quebec without Montreal would have a little country with Quebec City as the capital and not much else to be el presidente over. The sad thing is that if they stopped at Bill 101 and went no further (including not passing Bill 21), in about 20 years the entire population would be fluently French speaking with the French speaking population of Montreal having a pragmatic and realistic understanding of the wider world. Montreal, today, is almost there but that is an ideological threat to the provincial government. Sadly, our current mayor is going along with this when she could, for the health and vitality of Montreal could and should be pushing back. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [May 29, 2022, 7:24pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/84 "2022-05-29T19:24:40Z")
An opinion in The Globe (by Yakubuski) claims these language laws are a “paper tiger” without realistic enforcement. No doubt these laws are popular with what remains of the nationalists. No doubt parties hoping to win them over feel there is no need of anglophone votes. I was unaware economies were doing so well that another disruptive issue was needed. It may be true that anglophones do not consume as much francophone culture or care about _les vedettes_. But this is not true of all anglos, and in any case should be outside the governmental seneschals. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [November 2, 2022, 4:34pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/85 "2022-11-02T16:34:06Z")
I am sure the founders of the Canadian Constitution never envisioned the notwithstanding clause being dragged out by the provinces to avoid judicial scrutiny and ride roughshod over important rights. Yet how can one avoid this view looking at Quebec’s use regarding banning innocuous religious headwear or the rights of anglophones to conduct routine business? Few parents have much desire for yet another scholastic interruption. Yet the seeming desire to circumvent a judicial process and scrutiny for four or five years using this meant-to-be-used-rarely-if-at-all measure is also concerning, regardless of this. ---
**Author:** ![BeepKillBeep](https://avatars.discourse-cdn.com/v4/letter/b/9e8a1a/32.png) [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)\ **Post date:** [November 2, 2022, 4:58pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/86 "2022-11-02T16:58:29Z")
In my view, either the not withstanding clause needs to go, or the Federal government is going to have to bite the bullet and use disallowance more often. It is really gross. ---
**Author:** ![74westy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/74westy/32/3950_2.png) [@74westy](https://boards.straightdope.com/u/74westy)\ **Post date:** [November 2, 2022, 6:21pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/87 "2022-11-02T18:21:37Z")
> [@Dr\_Paprika](#): > > Few parents have much desire for yet another scholastic interruption. Yet the seeming desire to circumvent a judicial process and scrutiny for four or five years using this meant-to-be-used-rarely-if-at-all measure is also concerning, regardless of this Not sure what you’re referring to here. Is this Quebec or Ontario? ---
**Author:** ![FinsToTheLeft](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finstotheleft/32/2930_2.png) [@FinsToTheLeft](https://boards.straightdope.com/u/FinsToTheLeft)\ **Post date:** [November 2, 2022, 8:27pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/88 "2022-11-02T20:27:02Z")
> [@74westy](#): > > Not sure what you’re referring to here. Is this Quebec or Ontario? I assume the good doctor is referring to the Ontario legislation forcing a contract on the non-teaching staff in Ontario schools. I’m not a big union guy, I think they were instrumental in some industries at some points in time, but CUPE is not wrong here. I think what they are doing to the education workers is indefensible. Have the guts to go to binding arbitration if you are going to declare them essential workers who can’t strike. The NWC is is the nuclear option here. ---
**Author:** ![74westy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/74westy/32/3950_2.png) [@74westy](https://boards.straightdope.com/u/74westy)\ **Post date:** [November 2, 2022, 8:41pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/89 "2022-11-02T20:41:48Z")
That’s what I thought. Wasn’t sure from the post. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [November 2, 2022, 8:47pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/90 "2022-11-02T20:47:05Z")
> [@Dr\_Paprika](#): > > I am sure the founders of the Canadian Constitution never envisioned the notwithstanding clause being dragged out by the provinces to avoid judicial scrutiny and ride roughshod over important rights. As we’ve seen in the US the last few years, we seriously overestimated how much tradition would restrain the worst possible impulses of certain people. It turns out, there’s some people who, if you give them a power to be used _in extremis_, will quite happily use it every Tuesday. I think we need _something_ like the notwithstanding clause for emergency situations, but it’s got to be constrained somehow so that it can’t be used regularly. The five year limit was supposed to do that, but it’s clearly failed. Perhaps require a referendum on any legislation that invokes it? To be held within, say, 6 months of passing the law, and if the public rejects it, the government is barred from re-introducing any similar law for 5 years, or something? ---
**Author:** ![BeepKillBeep](https://avatars.discourse-cdn.com/v4/letter/b/9e8a1a/32.png) [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)\ **Post date:** [November 2, 2022, 10:11pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/91 "2022-11-02T22:11:26Z")
I think part of the restraint is supposed to be the Federal power of disallowance; however, that is such a political hot potato that no PM would ever touch it because suddenly they own the outcome. And of course one can imagine the howls of protest of the Federal gov’t “meddling” in provincial affairs. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [November 3, 2022, 2:17am UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/92 "2022-11-03T02:17:18Z")
> **[Opinion: What Ottawa should say to the provinces: See your notwithstanding...](https://www.theglobeandmail.com/opinion/article-what-ottawa-should-say-to-the-provinces-see-your-notwithstanding/)** > > If the taboo on using the notwithstanding clause no longer applies, then neither should the taboo on disallowance SHORT EXCERPT FROM ABOVE ARTICLE …”Bill 28, which prohibits [Ontario] education workers from striking, also prevents them from petitioning a court to restore the right just taken from them: that is, it invokes the constitution’s notwithstanding clause, exempting it from Charter scrutiny for the next four years…. It joins the Ford government’s two previous attempts to use the clause: the first, ultimately withdrawn, allowing it to rewrite Toronto’s municipal election laws midcampaign, the second permitting it to restrict “third parties” from advertising during provincial elections.” …”Add in the [Quebec] Legault government’s two invocations of the clause in Quebec, and that’s five actual or attempted uses of the constitutional override in Canada’s two largest provinces in the last four years… In none of the five cases, moreover, had a court actually invalidated the laws in question, whether on sound or specious grounds: rather, the clause was invoked pre-emptively, to foreclose even the possibility of such a ruling. It is not from rogue courts or freak decisions that the governments of Canada’s two largest provinces would defend their people. It is the whole principle of judicial review. It is the Charter itself…. With each new use of the clause, the taboo against it, once near absolute, has lessened. The first time Mr. Ford mused about invoking it, he provoked a storm of outrage…” ---
**Author:** ![BeepKillBeep](https://avatars.discourse-cdn.com/v4/letter/b/9e8a1a/32.png) [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)\ **Post date:** [November 3, 2022, 10:36am UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/93 "2022-11-03T10:36:42Z")
The fact that they made it a full election cycle long is so gross. I love Canada (of course). We can always do better, but we do a lot of things right. But the notwithstanding clause is absurd. It is a stain on our constitution. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [November 3, 2022, 12:34pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/94 "2022-11-03T12:34:31Z")
I saw a news story today, in which one of the unions affected by Doug’s latest use of the notwithstanding clause said the legislation was a violation of their constitutional rights. Well, duh, yes, that’s the whole point of it: the government admits right up front, “This violates the Charter, but we’re doing it anyways for reasons.” The problem is, the “reasons” are supposed to be more important than, “We don’t feel like doing our actual jobs, and negotiating with people.” ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [November 3, 2022, 3:16pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/95 "2022-11-03T15:16:49Z")
> [@Dr\_Paprika](#): > > I am sure the founders of the Canadian Constitution never envisioned the notwithstanding clause being dragged out by the provinces to avoid judicial scrutiny and ride roughshod over important rights. Wasn’t the notwithstanding clause used by Quebec right out of the gate for exactly that purpose? > **[Charterpedia - Section 33 – Notwithstanding clause](https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html)** > > Department of Justice Canada's Internet site > [@](#): > > The clause was first invoked in 1982 when Quebec passed an omnibus enactment that repealed all pre-Charter legislation and re-enacted it with the addition of a standard clause that declared the legislation to operate notwithstanding section 2 and sections 7 to 15 of the Charter. The legislation also inserted the standard clause into all post-Charter enactments. The declaration in the omnibus legislation purported to have retroactive effect to April 17, 1982. Repealing all their legislation then adding it back woth a section 33 disclaimer seems to me to be an attempt to skirt wide swaths of the charter. ---
**Author:** ![74westy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/74westy/32/3950_2.png) [@74westy](https://boards.straightdope.com/u/74westy)\ **Post date:** [November 3, 2022, 6:22pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/96 "2022-11-03T18:22:15Z")
> [@Sam\_Stone](#): > > Wasn’t the notwithstanding clause used by Quebec right out of the gate for exactly that purpose? I guess I’m not seeing how that justifies anything. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [November 3, 2022, 6:31pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/97 "2022-11-03T18:31:45Z")
The first section of the Constitution requires any decision to be justified by “reasonable limits”. This has, to my non-legal mind, seemed to result in robust debate and generally acceptable decisions even when there have been violations of other clauses. Perhaps it is enough in itself. I can understand that to gain contentious agreement of the Charter when it was first proposed, some sort of sober second thought or escape valve was seen as desirable by many provincial premiers. However, as the Coyne article points out, the purpose of recent frequent use of notwithstanding has not been to disagree with court decisions governments did not like, but to avoid the whole process of public debate and judicial scrutiny for reasons which are often purely political and partisan. This is a weak reason to trample the rights of others, and is essentially turning our back on national values which many people admire and which have served the country well. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [November 3, 2022, 6:33pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/98 "2022-11-03T18:33:52Z")
I shudder to think what would happen in the US if state and federal governments had the to pass “temporary” laws not withstanding the Bill of Rights & relevant amendments. Admittedly it would be amusing to watch Republicans react to Blue states passing laws notwithstanding the 2nd Amendment. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [November 3, 2022, 6:46pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/99 "2022-11-03T18:46:57Z")
> [@Dr\_Paprika](#): > > I am sure the founders of the Canadian Constitution never envisioned the notwithstanding clause being dragged out by the provinces to avoid judicial scrutiny and ride roughshod over important rights. That is precisely what they envisioned, because that is precisely why it exists. That’s its explicit purpose. Why the hell else would it be in there? > [@Horatius](#): > > The problem is, the “reasons” are supposed to be more important than, “We don’t feel like doing our actual jobs, and negotiating with people.” If that were the case, the section’s use would be limited in some way beyond the five year sunset. The horses left the barn on this issue in 1982. The Canadian Civil Liberties Association, to their enormous discredit, was fine with it at the time. We aren’t accustomed to its use in Ontario because it just hasn’t been used much, but it’s inevitable it would be. It’s as much a part of the Constitution as any other part; it is perfectly Constitutional to use it. You only have the freedom of association until a government legislates it away with s.33. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [November 3, 2022, 6:55pm UTC](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324/100 "2022-11-03T18:55:45Z")
I don’t think it was seen it would be used so frequently for relatively trivial reasons. I think it was included to get the agreement at all, and it was hoped that it might never be used because of public concern and media attention, which lessens every time it actually is used. Has it ever been used for something highly worthwhile? Of course, you are right in that it is explicitly there to be used or misused according to one’s views. But there was perhaps a time when things like conscience or good faith may have supervened. [Previous page](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324.md?page=4) [Next page](https://boards.straightdope.com/t/not-standing-with-canadian-charter-notwithstanding/944324.md?page=6)