this post was submitted on 03 Oct 2023

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Sask. premier 'jumping the gun' with turn to notwithstanding clause for pronoun policy: expert (www.cbc.ca)

submitted 1 year ago by [email protected] to c/[email protected]

27 comments fedilink hide all child comments

Saskatchewan's premier says he'll use the notwithstanding clause to override a court injunction that has paused the province's new pronoun policy for students. But a professor says the clause is meant to be used as a tool of last resort.

all 29 comments

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[–] [email protected] 34 points 1 year ago (2 children)

There really needs to be a consequence for using the notwithstanding clause or otherwise violating charter rights. Time and time again, populist politicians violate them to stoke votes, gain political momentum, then many years down the road, lose in court and their policies are reversed (paid by a future government with tax dollars). It's usually not as egregious as this, but it's a constant thing. Look at the public pay freeze that was just reversed in Ontario.

[–] [email protected] 4 points 1 year ago (1 children)

Were I a policymaker, I'd advise my party to advance a bill to amend the relevant Elections Act such that an invocation of the Notwithstanding Clause moves up the date of the next election into the next six months. Enough time to deal with a legitimate crisis, but not so much time that the electorate will forget.

[–] [email protected] 4 points 1 year ago

I'm not sure that helps. Here's my thinking: When it's done in bad faith, it's usually used for a populist cause, even though it's ultimately illegal. A snap election just lets them ride that popular support to another government, and as usual, the legal ruling comes much, much later. I don't really know the solution. The legal system is necessarily very slow, and that's a good thing, but it means that a politician can basically ignore whether a bill is legal or not, as they will never see any consequences.

[–] [email protected] -1 points 1 year ago* (last edited 1 year ago)

There really needs to be a consequence for using the notwithstanding clause or otherwise violating charter rights.

Why would the provinces sign on to that? The notwithstanding clause was a concession offered to the provinces in exchange for signing the constitution. If it were marred in all kinds of conditions, they would have simply walked away. Quebec walked away anyway. Imagine the nightmare we'd have if all other provinces did the same.

[+] [email protected] 34 points 1 year ago* (last edited 1 year ago) (3 children)

[deleted]

[–] [email protected] 26 points 1 year ago (2 children)

It needs to be stated clearly every time this comes up:

The notwithstanding clause TAKES AWAY RIGHTS, IT DOESN'T GIVE THEM. Using it doesn't give "parents rights," it takes away children's charter rights.

[–] [email protected] 7 points 1 year ago (3 children)

Using the Notwithstanding clause is an admission by the government that it’s trying to pass legislation that goes against the Charter of Rights and Freedoms.

It should at the very least require a full explanation and apology by the Premier, as to why he felt citizens’ rights were unimportant.

[–] [email protected] 1 points 1 year ago

Elegant argument. Hear hear!

[–] [email protected] 1 points 1 year ago

No. Not necessarily.

In this particular case, yes. But not always.

[–] [email protected] 1 points 1 year ago* (last edited 1 year ago) (1 children)

The explanation is well understood. A segment of the population believe that a change in one's identity is a symptom of mental illness, and as such see it as the duty of educators to open up about the signs and symptoms they are seeing, just as they would for any other illness. The contention is that the other segment of the population see changing identity as being a healthy expression of the human experience.

The Premier does not understand that there is a violation of rights. From his point of view, it is an illness not properly recognized, and is no different than letting it be known that a child is sick with a fever – something that is expected to be shared under what is considered to be for the best interests of the child.

[–] [email protected] 3 points 1 year ago (1 children)

The Premier does not understand that there is a violation of rights.

If this was true, they could pass the legislation without the notwithstanding clause.

[–] [email protected] 1 points 1 year ago* (last edited 1 year ago)

No, he fully understands that, from his point of view, the illness is misclassified – in other words, it is not considered an illness by all. This is no doubt a Charter violation when changing identity is not considered an illness by the courts. Hence the preemptive notwithstanding call. But he understands it to be an illness, and therefore no rights are violated from his point of view.

[+] [email protected] -6 points 1 year ago* (last edited 1 year ago) (1 children)

There are two sides to every coin. It takes away federal rights, but gives provincial rights.

[–] [email protected] 7 points 1 year ago (1 children)

No, it doesn't take away or give rights to provincial or federal governments. They don't have charter rights in the first place, only individuals have charter rights.

The notwithstanding clause permits the province to override people's charter rights. That may be justified sometimes, but it shouldn't be framed as anything else. It's removing rights, not granting them.

[–] [email protected] -4 points 1 year ago (2 children)

If your rights are taken away, someone else has gained rights. The bookkeeping has to add up.

[–] [email protected] 6 points 1 year ago (1 children)

Huh, I had suspected a lot of conservative types see everything as a zero-sum game, but it isn't usually presented so obviously.

Clearly, this isn't the case. Let's say we delete the right to freedom of religion in the Charter, and ban Christianity from our country. No one has gained any rights. In fact, we all lose a right, even non-Christians.

[–] [email protected] -1 points 1 year ago* (last edited 1 year ago) (1 children)

That requires someone to have gained the right to ban religion.

I had suspected conservative types believe in magic, but I am surprised that includes the Charter magically changing on its own.

[–] [email protected] 3 points 1 year ago (1 children)

That's a strange re-definition of a "right". I guess if you re-define the word to encompass any sort of government power. Too bad we live in a world where words mean things.

[–] [email protected] -1 points 1 year ago (1 children)

I guess if you re-define the word to encompass any sort of government power.

Governments aren't touching the Constitution with a ten foot pole. The only way we are banning religion is if someone is given the right to.

Too bad we live in a world where words mean things.

Typical conservative logic. You don't have to cling dearly to your grandfather's world, you know. We can move forward and see progress.

[–] [email protected] 2 points 1 year ago

Okay, now your argument has officially gone off the rails.

To clarify my point, governments don't have rights, they have powers. The charter grants people rights. The notwithstanding clause gives the province a power to override a charter right. Exercising that power only ever removes people's rights. And yes, the country can become less free if rights are overridden. Nothing necessarily "balances that out." Losing charter rights is often a very bad thing, and even if it's necessary in a particular case, everyone should be honest -it's a loss of rights.

[–] [email protected] 2 points 1 year ago

No? Why?

[–] [email protected] 1 points 1 year ago

If this were the US, “land of the free”, I wouldn’t be so sure. Maybe I’m just cynical, but they’ve been removing that right from students in schools for a while now.

[–] [email protected] 5 points 1 year ago

We just need to get rid of that thing.

[–] [email protected] 3 points 1 year ago

I wish the province would wake up and vote this guy out.

We are lemmings.