Juno News - Ottawa’s latest legal gambit could ignite a constitutional crisis

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.

00:00:00.000 You had a great piece in The Hub, and we're going to pull up a screenshot of it here.

00:00:04.920 And it's where you do a really good explainer of the notwithstanding clause.

00:00:10.240 Now, this is making a lot of news in relation to Quebec with some of its, I believe it's the

00:00:16.180 religious symbols issue. But you described it as a safety belt, the notwithstanding clause as a

00:00:23.820 safety belt. Can you just explain to our audience exactly what the notwithstanding clause is,

00:00:29.260 how long have we had it for, and what is its purpose? Yeah, so the notwithstanding clause was

00:00:34.400 the deliberate democratic compromise arrived at in the original negotiations leading up to

00:00:40.540 the adoption of the charter in 1982. And we know in particular the Prairie premiers, namely

00:00:46.640 Alan Blakely and Peter Lockheed, would not have agreed to the adoption of the charter without

00:00:51.120 Section 33. Now what does Section 33 do? It allows legislatures to adopt legislation notwithstanding

00:00:58.280 the charter. That doesn't purely mean that they're overriding rights. It means that they're signaling

00:01:03.800 we have a different interpretation about the requirements of charter rights than we think

00:01:08.800 judges are going to have. We have different legislative priorities. And so it allows us to

00:01:14.220 wield that judgment and sort of it effectuates this very careful balance between the power of

00:01:20.000 judges and legislatures, which everybody understood the charter was going to give much more judges to

00:01:25.340 to power sorry power to judges judges are unelected they are not accountable to constituencies they're

00:01:31.980 not connected to the realities of governing there's no question that governments overreach

00:01:36.940 all the time we see that as well and so the notwithstanding clause has important limitations

00:01:42.060 it has to be renewed every five years it has to be publicly pronounced and so uh the public has

00:01:48.860 the opportunity to vote governments out if they don't like what they've done with the notwithstanding

00:01:54.660 clause. So it's certainly not a get out of jail free card. Excellent description. So if I may,

00:02:01.080 so on the political side of things and the elected government, right, we have the ability,

00:02:06.100 obviously, to vote for our members of parliament federally. So we're able to hold those individuals

00:02:11.240 to account that way. Here in the province of Alberta, we can vote for our members of the

00:02:15.800 legislature, legislative assembly. And we also have recall legislation here in Alberta. So it

00:02:21.420 kind of warms my heart that it was prairie premiers that were insisting on having this

00:02:25.960 form of a safety bell. And then would you then, is it fair to describe this as a balancing mechanism

00:02:33.060 between the courts and the commons? Yeah, absolutely. And it's also a recognition that

00:02:38.740 Canada has a Westminster-style parliamentary democracy. And in Westminster-style parliamentary

00:02:44.620 democracies, parliament is supreme. Parliament decides on the contour and shapes of rights.

00:02:50.220 And so Canada kind of came into more of a hybrid system with this defined Bill of Rights.

Juno News - October 01, 2025

Ottawa’s latest legal gambit could ignite a constitutional crisis

Episode Stats

Summary

Transcript