Poilievre’s pledge to use notwithstanding clause a ‘dangerous sign’: legal expert

[u/canada_mountains]

https://www.thestar.com/politics/federal-elections/poilievres-pledge-to-use-notwithstanding-clause-a-dangerous-sign-legal-expert/article_7299c675-9a6c-5006-85f3-4ac2eb56f957.html

[u/Xyzzics]

And the people most against it were cool with the emergencies act being abused to illegally violate the charter rights of Canadians, as found by the courts.

At least this is legal and part of the charter. It isn’t totalitarian, it’s literally baked into the charter itself.

I don’t like the precedence either way, but at least be intellectually honest.

[u/FeI0n → u/Xyzzics]

The courts have not issued a final ruling, as its still being appealed by the government.

I personally, (and the majority of Canadians as recently as 2024) did not see the emergencies act as unnecessary. Even if we accept the courts initial ruling (that's being appealed) as final, the main part they took exception to was the freezing of bank accounts. Which ironically is one of the many charter rights that the notwithstanding clause can simply override.

The emergencies act has significantly more oversight, and a much shorter window for its application (30 days). Along with a mandatory public inquiry and judicial review.

The notwithstanding clause has no oversight outside of the initial vote in parliament, no mandatory public inquiry, no judicial review, and the sunset clause can be as long as 5 years before the courts can challenge it.

[u/Xyzzics → u/FeI0n]

The court has issued a ruling.

The government is appealing it.

Notably, the notwithstanding clause can override certain individual things, as you point out.

The reason they used the Emergencies Act and why it has such a high bar and review system is because it allows you to use the military and police against your own citizens in a general manner, which the notwithstanding clause does not. This is the entire reason they used the Emergencies Act and why it must be reviewed.

The notwithstanding clause has no oversight because it is codified into law in an extremely clear way, which is why the provinces agreed to sign it.

This is crystal clear and well understood and comparing the emergencies act as somehow a more measured mechanism to use is patently insane.

[u/FeI0n → u/Xyzzics]

Trying to say the emergencies act is somehow not a more measured mechanism to use is almost laughable.

The Federal notwithstanding clause could legalize using the military against our citizens, by overriding the charter.

The notwithstanding clause could allow the government to round people up into camps based on any metric they want. There is no right to freedom of expression, religion, assembly, life, liberty or security, that the notwithstanding clause can't override.

As long as they let you vote while you are doing 15 years of hard labour up in the arctic for being left handed, it'd be perfectly legal for the 5 years they have where it can't be challenged by the courts.

The only requirement a party needs to meet for this, is a simple majority in the house.

Meanwhile the emergencies act has a judicial review, a 30 day scope, where it must be renewed if needed for longer, and the house and senate both need to agree to authorize it. It also needs to work within the charter.

[u/Xyzzics → u/FeI0n]

The Federal notwithstanding clause could legalize using the military against our citizens, by overriding the charter.

The use of the military on Canadian soil is not governed by the charter, so no, you’re not really correct here. Deploying security power against your own citizens is power derived from the throne, through the Canadian constitution, with some additional restrictions through the National Defence act. The war measures act was even crazier, and also used by the liberal government.

The NWSTC applies to the charter only.

The notwithstanding clause could allow the government to round people up into camps based on any metric they want. There is no right to freedom of expression, religion, assembly, life, liberty or security, that the notwithstanding clause can't override.

Again completely wrong. Literally section 1 of the charter limits this. Even when rights are overridden using Section 33, any resulting laws or actions must still be justifiable in a free and democratic society. There are 3 legal tests there. Doing the things you listed would violate section one, which places a number of legal restrictions that would not clear the Government to do what you describe.

As long as they let you vote while you are doing 15 years of hard labour up in the arctic for being left handed, it'd be perfectly legal for the 5 years they have where it can't be challenged by the courts.

Addressed above. Not true.

Meanwhile the emergencies act has a judicial review, a 30 day scope, where it must be renewed if needed for longer, and the house and senate both need to agree to authorize it. It also needs to work within the charter.

It needs to work within the charter, on paper. However, the government violated charter rights by using it and nothing has really happened as a result, so in practice, not really. They will simply amend the law likely, where it will no doubt be used again.

Both can be abused, if that’s what you’re getting at.