Raj: Quebec is using the Constitution to take away the rights of minorities. What if that becomes the norm?

But Housefather thinks a conference with legal scholars or a committee of the House of Commons could explore:

1) whether the notwithstanding clause should be enacted through a simple majority vote;

2) whether the override clause should be able to override fundamental freedoms, such as conscience, religion, expression, and association, found in section 2 of the Charter;

3) whether the notwithstanding clause should be used pre-emptively.

He argues pre-emptive use wasn’t what the framers had in mind, back in 1981, when the override clause was inserted into the Charter to break an impasse between some premiers and Ottawa.

According to the Library of Parliament, Allan Blakeney, the then premier of Saskatchewan, referred to the measure as one that would allow Parliament and the legislatures to “override a court decision.” Roy McMurtry, the attorney general of Ontario, wrote that the notwithstanding clause would be used “in the unlikely event of a decision of the courts that is clearly contrary to the public interest.”

Housefather hopes the conversation can move beyond one focused on Quebec.

“Bill 21 is a Quebec issue, but the notwithstanding clause and the ability of any legislature to override fundamental rights is not a Quebec issue. It’s a national issue.”

Ontario Premier Doug Ford used the notwithstanding clause this June to reintroduce a third-party election spending bill that had been struck down by the court. He previously threatened to use the clause if the court prevented him from interfering in the municipal election by changing the size of Toronto’s city council. Alberta Premier Jason Kenney has mused about invoking section 33, and, last year, New Brunswick MLAs voted to remove the notwithstanding clause from a bill imposing mandatory vaccination for children in schools and daycares.

At the heart of the matter is getting the Supreme Court to review a 1988 decision that very broadly interpreted the clause. Back then, the court was ruling on a case from the early 80s. “The Charter was sort of wet behind the ears,” said Robert Leckey, the dean of law at McGill University, “and so the idea that the court got it right in 1988 in a way that would last for ages, doesn’t make sense to me.”

The top court has changed its mind on collective bargaining and more recently medically-assisted dying. Ottawa could step in with a reference to the Supreme Court, though Leckey believes a more strategic approach would be intervening at the Quebec Court of Appeal.

His big concern is that the notwithstanding clause becomes normalized, that Canadians stop being shocked by its use, and that, consequently, there are few political costs to invoking it. That would be truly dangerous, he said.

So if a national conversation can help discuss legitimate and illegitimate uses, Leckey’s for it.

“A lot of people have a sense that you shouldn’t use (the override clause) to authorize torture, but there is nothing on the face of section 33 or the Supreme Court’s judgment that would tell us that you shouldn’t use the notwithstanding clause to legalize torture,” he said.

“So there probably are some implicit norms around it that we haven’t done a very good job yet of fleshing out.”