Moreover, media coverage and scrutiny of the notwithstanding clause differs depending on the province—for example, there’s less scrutiny in newspapers of the Quebec government (which uses the clause more than any other province) compared to the Ontario government.
“Among newspapers in Canada, there’s selective criticism of governments that use the notwithstanding clause,” Miljan said.
A separate essay notes that the notwithstanding clause is the last vestige of legislative supremacy under Canada’s Charter of Rights and Freedoms.
Since the introduction of the Charter in 1982, Canada’s Supreme Court has been transforming its roster of individual freedoms into an instrument for progressive values and collective rights.
In response, provincial governments have increasingly used the clause (section 33 of the Charter) to assert their legislative authority and enact provincial laws that might otherwise be struck down by courts because they conflict with the judicial interpretation of certain Charter rights.
“The danger in our system of government is not legislative supremacy or judicial supremacy, but supremacy itself,” said Bruce Pardy, professor of law at Queen's University, senior fellow at the Fraser Institute and author of Supremacy, Notwithstanding: In Canada, Who Protects Individual Liberties? Not Courts. Not Legislatures.
“Canadians face two bad choices—they can be ruled by courts empowered by the Charter or by legislatures armed with the notwithstanding clause,” Pardy said.
Media Contact:
Lydia Miljan, Senior Fellow, Fraser Institute
Bruce Pardy, Senior Fellow, Fraser Institute
To arrange media interviews or for more information, please contact:
Mark Hasium, Fraser Institute
604-688-0221 ext. 517
mark.hasiuk@fraserinstitute.org
