Canada's Supreme Court to finally test excessive use of "notwithstanding clause"

Canadian courts are finally taking to task those provincial governments - like Ontario, Quebec and Saskatchewan - that are routinely and willfully using the "notwithstanding clause" in the Canadian Charter of Rights and Freedoms to pass legislation that is clearly contrary to human rights in the country.

Section 33 of the Charter, which effectively allows governments to override parts of the document, has always been a controversial element, and was always intended as a tool of last resort, only to be invoked in extremely rare circumstances. But, increasingly in recent years, some provincial governments have been using it to justify their own controversial motions, even invoking it pre-emptively, in the full knowledge that the legislation they are proposing is illegal under the Charter, as Ontario Premier Doug Ford did just this week. It has never been invoked at the federal level, but Pierre Poilievre - of course it would be him! - says he would be open to using it to push through dubious legislation on legal sentencing and bail.

It's frankly ridiculous that such a clause exists at all - it only exists to allow governments to break the law of the land - but given that it does, it should be used extremely sparingly and judiciously. The latest crop of (mainly conservative) populist politicians seem to feel this does not apply to them.

But now, finally, the Supreme Court of Canada is set to take on a case - brought by the National Council of Canadian Muslims, the Canadian Civil Liberties Association and teacher Ichrak Nour el Hak - appealing Quebec's Bill 21 (which seeks to ban public service employees from wearing religious symbols like crosses or hijabs). As part of this case, the Supreme Court must look at whether Quebec can hide behind the notwithstanding clause to push through such legislation.

Bring it on, I say. The notwithstanding clause is an unconscionable anachronism, but, given that it exists, it should at least be limited to the kinds of extremely rare circumstances envisaged by the Charter's authors, not just to allow unscrupulous governments to pass bad legislation.