Why use the notwithstanding clause?
On laziness, impatience, and vengeance.
Why would anyone resort to using the notwithstanding clause?
According to the UCP and its defenders, the answer is some combination of we can [ok, sure] and we have to [no, you don't].
The real answer is captured in the flowchart below:
The UCP wants to strip Charter rights without lessening the harm on Albertans.
Whether that makes them lazy, impatient, or vengeful, the result is the same.
Pre-emptively using Section 33 doesn’t just allow the government to do an endrun around the courts.
It removes their obligation to defend their laws as being necessary and justified in a democratic society.
They are also not bound to ensure the law is proportionate and minimally impairs the rights in question.
These limitations exist under s1 of the Charter, using the Oakes test.
These “reasonable limits” keep governments from taking the easy way out, taking shortcuts, or taking out their frustrations on their “enemies.”
Take the UCP.
Whatever their motivation, the notwithstanding clause allows them to tailor laws for maximal impact on those they’ve singled out.
First, they targeted teachers and unions. They went beyond mandating arbitration (which s1 allows) to impose an agreement on the UCP’s own terms and remove their collective bargaining rights for years.
We’re told a similar fate awaits members of the trans community in Bill 9, which is expected to be introduced on Monday.
If these moves are successful, the UCP may feel emboldened to target other groups with similar abandon. Their list of resolutions for this month’s AGM gives us a sense of who might be next:
As I’ve said previously, governments can use the notwithstanding clause. But just because you can doesn’t mean you have to or should.
For further reading on this topic, see my earlier posts.
Lazy, impatient, vengeful fast track to fascism. Smith has every intention of exerting the maximum harm on Albertans. Like trump, cruelty and control is the point. Empathy is for humans, cruelty for cruelty sake is for psychopaths, a category they have both been upgraded to from sociopath based on their actions.
Thank you for this and the other articles on the notwithstanding clause. Very helpful to learn about and understand the implications of using it. Frankly, the implications of the UCP motivations are terrifying, and must be vociferously opposed.