Local MPP introduces legislation to restrict use of the notwithstanding clause

An Ottawa area member of provincial parliament (MPP) has tabled legislation to restrict government's use of the notwithstanding clause. 

Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause, sometimes referred to as the override power, and it allows parliament or provincial legislatures to temporarily override sections two and seven to 15 of the Charter.

The clause was used earlier this month when the Progressive Conservative government tabled legislation that imposed a contract on education workers with the Canadian Union of Public Employees (CUPE) and banned them from striking. The government invoked the notwithstanding clause to keep the eventual law in force despite any constitutional challenges.

It is just the second time in Canadian history, that the controversial clause — which allows the legislature to override parts of the Canadian Charter of Rights and Freedoms for a five-year term –has been used in back-to-work legislation.

Lucille Collard, MPP for Ottawa-Vanier and Ontario Liberal House Leader, tabled the legislation on Nov. 15. 

“It is my hope that this legislation would not only help to protect the rights and freedoms of Ontarians in the future, but also send a message to governments across this country,” she said in a release. “Section 33 should not be randomly used as a simple tool to bypass protected rights Rather, its use must be restricted to only the most critical of situations. The rights and freedoms in our Charter are fundamental to what it means to be Canadian, and we must protect them.”

The new bill entitled the Notwithstanding Clause Limitation Act is intended to limit the use of the notwithstanding clause so that it is not used casually or on a regular basis. If passed, this legislation would:

• Put in place several measures to limit the ability of the Ontario government to use section 33 of our Charter.
• Prevent the government from pre-emptively suspending the rights of Ontarians before a court has ruled that a piece of legislation does indeed infringe upon Charter rights.
• Restrict its use to only urgent and critical situations of a temporary nature that seriously endanger the lives, health or safety of Ontarians
• Require the government to submit a report explaining the reasons and significance of its use of the Notwithstanding clause each time it proposes legislation that includes the clause.