On Friday, March 27, the uOttawa Public Law Centre, the Alex Trebek Forum for Dialogue, the Ottawa Law Review, and the Greenberg Chair for Women in the Legal Profession will a one-day conference on the past, present, and future of the notwithstanding clause.
Recent uses of the notwithstanding clause in Ontario and Quebec have reignited discussions about the role of “the override” in our constitutional framework. In 2018, the Ford government enacted legislation reducing the size of Toronto City Council from 47 to 25 wards during an ongoing municipal election. After a Superior Court justice struck down the Act as an unjustified violation of freedom of expression, Premier Ford announced that his government would both appeal the ruling and invoke the notwithstanding clause to shield the Act from further constitutional challenge. The government subsequently succeeded in its appeal to the Ontario Court of Appeal, and the legislation containing the notwithstanding declaration was never enacted.
In 2019, the Quebec National Assembly passed Bill 21, a secularism law that prohibits certain public servants from wearing religious symbols in the course of their employment. The law includes a notwithstanding declaration to stave off constitutional claims on freedom of religion grounds. Aspects of that law are now being challenged in the courts.
This conference will explore several themes, including:
- Are there or ought there to be limits on the use of the notwithstanding clause beyond those articulated by the Supreme Court of Canada in Ford v Quebec (AG)?
- To what extent should the history of the adoption and use of the notwithstanding clause inform current debates about its invocation?
- What role do courts play in reviewing uses of the notwithstanding clause?
- How should political actors and courts balance the constitutional rights and principles engaged by the decision to invoke the notwithstanding clause?
- What challenges and opportunities exist in developing a litigation strategy in this context?
- How are social movements and civil society influencing debates around the use of the notwithstanding clause?
- Does the current pattern of populism and democratic decline worldwide cast doubt on the wisdom of empowering legislators to override constitutional rights?