What is the escape clause and how does it affect your laws and rights?

You may have heard the term “notwithstanding clause” in the media lately, but what exactly is this clause and what is its purpose?

“It’s sometimes called the ‘override power’ and, essentially, it allows laws to override Charter rights,” explained Sarah Burningham, a*sistant professor at the University’s Faculty of Law. of Saskatchewan.

The term was used more recently after Saskatchewan Premier Scott Moe mentioned last week that the notwithstanding clause is one of the “tools” the provincial government is considering to keep legislation in place requiring the parental permission for children to use different names or pronouns at school. .

Burningham said the clause allows governments to pa*s laws without regard to whether they violate certain human rights, but noted that not all rights enshrined in the Canadian Charter of Rights and Freedoms can be canceled.

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The Government of Canada website states that rights that may be affected include fundamental freedoms, legal rights and equality rights, but that the clause cannot affect democratic rights, mobility rights and rights linguistics.

Burningham said once the clause is invoked, it immunizes the law to which it applies from Charter scrutiny.

The usual process, Burningham explained, begins with the government enacting a law. “If this potentially infringes on their rights, plaintiffs can sue the government. They can go to court and argue that this law violates their Charter rights, and a judge will rule. »

She said the escape clause circumvents that process.

“Judges can no longer review the law now. They can’t overturn it if it’s not constitutional.”

She said the “control” over the escape clause came down to the ballot box.

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“If people are unhappy with the use of the escape clause, if they are unhappy with the way the government has violated their rights, they can reject it. »

She said the clause is designed with political control in mind, explaining that the waiver expires after five years of implementation and must be readopted if governments wish to keep the waiver in place.

Burningham said the clause attempts to strike a balance between protecting rights and giving your elected representatives the final say on complex political and moral issues, as well as rights issues.

She said the clause had no real legal limitations on its use, noting that the only real limitation was on ballot boxes.

“The more we see the escape clause being used, the less controversial it seems and the less effective this control might be. »

She added that if this measure was used regularly, the public would be less concerned about it and we would be less likely to see it become an election issue.

“We have had a variable history with the notwithstanding clause since 1982 when the Charter was enacted. »

Burningham explained that Quebec has frequently used this clause, including immediately after the enactment of the Charter, adding that the use of this clause in other provinces has been much less frequent and controversial, but is increasing.

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“We’ve had times where this has been brought up, but we’re actually seeing significant usage of this product over the last few years.”

She said the norm against its use appears to be weakening.

Burningham said the clause can be implemented relatively quickly, but it must go through legislative debate.

This clause can be invoked at any time, with Burningham saying it could be adopted at any time during a controversy, or after a trial or appeal.

She said best practice around the clause would include a public debate and the government explaining why the clause is being implemented – “the government is defending it, explaining why it has to violate rights to push this policy forward”.

Burningham suggested that if a government feels it needs to implement a law’s notwithstanding clause, it should first follow the usual processes so the government can explain to the public why the policy is necessary.

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Premier Scott Moe said on September 13 that he would consider using the notwithstanding clause, along with other “tools”, to keep the legislation in place.

The province implemented a law requiring parental permission for children to use different names or pronouns at school.

“The notwithstanding clause is there for a reason: so that duly elected governments can represent their constituents when necessary,” Moe said.

The new rules and regulations have come under scrutiny from many organizations, with the Saskatchewan Children’s Advocate announcing it will review the legislation to see if it conflicts with the Charter of Rights and freedoms.

This review was published on Friday and says it violates human rights laws.

“We agree with the government’s desire to place a high emphasis on parent and guardian involvement in education,” said lawyer Lisa Broda, who led the review. “However, this goal can be achieved without imposing such strict rules regarding consent, which could result in a violation of a young person’s rights under provincial, constitutional and international human rights laws. »

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Broda said the age requirement of 16 is not fair to students because it does not demonstrate the individual’s abilities.

“Many young people under the age of 16 will have the capacity to make this type of decision. Giving them the chance to demonstrate their abilities is an important step in realizing their right to their gender identity.

— with files from Brooke Kruger and The Canadian Press

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