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Dear John,
Today, the Fraser Institute published two essays discussing the “notwithstanding clause,” examining its growing normalization in Canadian politics and its role in maintaining legislative authority under the Charter of Rights and Freedoms.
The first essay - Has the Notwithstanding Clause Become Less Controversial? finds it's becoming more commonplace for provincial governments to consider and use the notwithstanding clause.
Moreover, media coverage and scrutiny of the notwithstanding clause differs depending on the province — for example, there’s less scrutiny of the Quebec government (which uses the clause more than any other province) compared to the Ontario government.
Read this essay here.
The second essay - Supremacy, Notwithstanding: In Canada, Who Protects Individual Liberties? Not Courts. Not Legislatures. finds that since the introduction of the Charter in 1982, Canada’s Supreme Court has been transforming its roster of individual freedoms into an instrument for progressive values and collective rights.
In response, provincial governments have increasingly used the clause to assert their legislative authority and enact provincial laws that might otherwise be struck down by courts because they conflict with the judicial interpretation of certain Charter rights.
Find out more here.
Canadians face two bad choices — they can be ruled by courts empowered by the Charter or by legislatures armed with the notwithstanding clause.
Sincerely,
Niels Veldhuis
President
The Fraser Institute
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