The Notwithstanding Clause represents the concept of balancing the good of society and rights and freedoms in it's entirety. The notwithstanding clause serves as a "safety valve" for legislatures who feel that their legislation is more valuable to society than upholding individual rights and freedoms. This is seen time and time again when analyzing uses of the notwithstanding clause. For example, Ontario's use of the notwithstanding clause to pass Bill 28 which required education workers to return to work can be seen as a prime example of the government choosing to prioritize the good of society over individual rights and freedoms and fair labour disputes. However, significant societal backlash eventually forced the government to repeal the bill which shows how society can still express it's views on where the balance should lie. Furthermore, the five-year expiration limit on laws passed 'notwithstanding'further demonstrates how society can compel governments to re-evaluate the balance between individual rights and freedom and the good of society through democratic expression.
written by awsaf syed
01/18/25
The usage and perception of the notwithstanding clause has dramatically shifted and evolved over it's 43 year history. Many changes are in response to a variety of factors, including what society values and believes in, technological advances, and political trends. Historically, using the clause outside of Quebec was seen as a political 'taboo' that signaled a disregard for human rights. However, recently, we have seen a shift in the political attitude regarding the use of the notwithstanding clause. More specifically, there has been in a rise in the clauses' uses which has been started a trend of its' normalization. Additionally, another significant legal strategy is the move towards preemptive invocation. Instead of waiting for courts to provide a proper judicial review of legislation, governments are now proactively invoking the notwithstanding clause to avoid any potential legal challenges (Notably Quebec with Bill 96). Critics such as David Lametti argue that this trend represents an abuse of the original intent of the clause as a last ditch safety measure. Furthermore, while the federal government has never used the clause, current political trends suggest this may change in the coming years. Federal conservative leader Pierre Poilievre has suggested using the clause to override the Supreme Court rulings on consecutive sentencing for multiple murders.
written by awsaf syed
01/18/25