Saturday, September 30, 2023

Notwithstanding clause being abused yet again

Pretty much any time the notwithstanding clause is used, you know it is being used for something bad. By definition, the clause is not used until a government has been closed down by the courts in its pursuit of something that is demonstrably illegal or unconstitutional.

The latest threat to use the Canadian Constitution's notwithstanding clause comes from Scott Moe's Saskatchewan government (yes, another Conservative government), as he looks to ram home his party's obsession with not allowing schools to use kids' preferred names and pronouns without parental permission. 

And the reason he needs to use the notwithstanding clause? Because Saskatchewan's Court of the King's Bench has paused his plan on the grounds that it may cause irreparable harm to some of its most vulnerable young people. But Moe doesn't care about details like that: he has a view and a vision and he thinks it is right (or at least a vote-catcher), regardless of what anyone else thinks.

Moe calls the court decision "judicial overreach" (er, no, it is the law making a decision that he happens to disagree with). He says that his proposed law is to "protect parents' rights" (what about the kids' rights? Oh, of course, those kids can't vote!), and that he is using the notwithstanding clause to force it through in order to "provide clarity to parents" (the court's ruling was very clear: the law violates Canada's Charter of Rights and should be set aside). 

So, once again, a Conservative government is using the notwithstanding clause for a purpose the Charter's architects never envisaged (to force through legislation that is either illegal or unconstitutional or both), and they are doing it with barely a second glance. Maybe they should have envisaged this kind of thing back in 1982. But then, the 1980s was a very different (and much more innocent) time.

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