The Goldwaters are back with a very special episode.

Anne-France Goldwater and Marie-Hélène Dubé are joined this week by constitutional lawyer—and Anne-France’s former law professor!—Julius Grey.

Grey is on the pod to talk that dreaded bit of the constitution, the notwithstanding clause.

The Clause allows governments to enact laws that may not be compliant with the Charter of Rights and Freedoms. It’s a bit of the Charter that was included as a bridge between the traditions of Parliamentary supremacy and the present of a written constitution, Grey said.

“Since we were transitioning from parliamentary to a constitutional democracy, a way to ease that transition [to where] the courts that are the ultimate guardians of the Charter of Rights, is to have a little bit of a compromise,” Grey said. The notwithstanding clause is “a transitional provision, where the government gets to maintain a little bit of its old parliamentary supremacy.”

The clause is a controversial part of our constitution. It was used here in Quebec when Bill 21 was passed, banning people who wear religious clothing from large parts of the public service.

And because the notwithstanding clause is that bridge, it allows the majority to impose its will on the rest of society, and allows governments to ignore the rights of the individual by bypassing the courts, Grey said during the podcast.

“The fact is that democracy is not all about the majority. Democracy is not even about minority rights. But it is about individual rights, the right of the person who lives in a democracy,” Grey said. “It’s not up to the majority … what I will wear or what I will eat, or what I will speak.”

The three get into language laws like Bill 101 and talk about how the history of Quebec’s legal traditions has differed from the rest of the country. They touch on education and the importance of judicial intervention in legislation.

Further Reading

  • Anne-France Goldwater: For an excellent primer on how Canada’s legal system works, Peter W. Hogg’s Constitutional Law of Canada is indispensable. 

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