Juno News - October 01, 2025Ottawa’s latest legal gambit could ignite a constitutional crisis
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Summary
In this episode, we discuss the role of the notwithstanding clause in Canada's Charter of Rights and Freedoms and the role it plays in relation to the Quebec Bill of Rights. We are joined by the excellent journalist and author of the excellent piece "The Votemind Clause: A Safety Bell" to explain what the clause does and why it's important.
Transcript
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You had a great piece in The Hub, and we're going to pull up a screenshot of it here.
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And it's where you do a really good explainer of the notwithstanding clause.
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Now, this is making a lot of news in relation to Quebec with some of its, I believe it's the
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religious symbols issue. But you described it as a safety belt, the notwithstanding clause as a
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safety belt. Can you just explain to our audience exactly what the notwithstanding clause is,
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how long have we had it for, and what is its purpose? Yeah, so the notwithstanding clause was
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the deliberate democratic compromise arrived at in the original negotiations leading up to
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the adoption of the charter in 1982. And we know in particular the Prairie premiers, namely
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Alan Blakely and Peter Lockheed, would not have agreed to the adoption of the charter without
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Section 33. Now what does Section 33 do? It allows legislatures to adopt legislation notwithstanding
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the charter. That doesn't purely mean that they're overriding rights. It means that they're signaling
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we have a different interpretation about the requirements of charter rights than we think
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judges are going to have. We have different legislative priorities. And so it allows us to
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wield that judgment and sort of it effectuates this very careful balance between the power of
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judges and legislatures, which everybody understood the charter was going to give much more judges to
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to power sorry power to judges judges are unelected they are not accountable to constituencies they're
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not connected to the realities of governing there's no question that governments overreach
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all the time we see that as well and so the notwithstanding clause has important limitations
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it has to be renewed every five years it has to be publicly pronounced and so uh the public has
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the opportunity to vote governments out if they don't like what they've done with the notwithstanding
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clause. So it's certainly not a get out of jail free card. Excellent description. So if I may,
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so on the political side of things and the elected government, right, we have the ability,
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obviously, to vote for our members of parliament federally. So we're able to hold those individuals
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to account that way. Here in the province of Alberta, we can vote for our members of the
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legislature, legislative assembly. And we also have recall legislation here in Alberta. So it
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kind of warms my heart that it was prairie premiers that were insisting on having this
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form of a safety bell. And then would you then, is it fair to describe this as a balancing mechanism
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between the courts and the commons? Yeah, absolutely. And it's also a recognition that
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Canada has a Westminster-style parliamentary democracy. And in Westminster-style parliamentary
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democracies, parliament is supreme. Parliament decides on the contour and shapes of rights.
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And so Canada kind of came into more of a hybrid system with this defined Bill of Rights.