The Big Story
Explaining the controversy around the Notwithstanding Clause
Apr 17, 2025
Constitutional law expert Eric Adams from the University of Alberta discusses the controversial Notwithstanding Clause of the Canadian Charter of Rights and Freedoms. He explains its historical context and why it sparks debate about legislative versus judicial authority. Adams dives into recent political proposals to use the clause for criminal justice reforms, such as reviving consecutive life sentences. He highlights the potential impact on individual rights and the importance of safeguards against governmental overreach in Canadian democracy.
22:35
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Quick takeaways
- The Notwithstanding Clause allows governments to temporarily bypass certain Charter rights, raising concerns about potential misuse and public backlash.
- Pierre Poilievre's proposal to invoke the clause for justice reforms signals a shift that may increase its controversial application in Canadian politics.
Deep dives
Understanding the Notwithstanding Clause
The notwithstanding clause in the Canadian Charter of Rights and Freedoms allows government bodies to enact laws that may violate certain charter rights without them being struck down by the courts. It essentially provides a 'mini charter shield' around a law for a five-year period, even if a court rules it unconstitutional. This clause was included in the 1981 negotiations to appease provinces that were concerned about judicial overreach, emphasizing that elected representatives should have the final say on legislation. The clause is unique to Canada, positioning it between the British principle of parliamentary supremacy and the American focus on entrenched rights.
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