(Not)withstanding minority rights: re-thinking Canada's notwithstanding clause

On October 22, 2018, Ontario Premier Doug Ford announced that he would be using the Canadian Charter of Rights and Freedoms notwithstanding clause to override an Ontario Superior Court decision which held that his government’s municipal election legislation was unconstitutional. Ford went so far as to say that he ‘won’t be shy’ about using the clause in the future. Several months later, Quebec Premier Francois Legault used the notwithstanding clause in legislation to ban the wearing of religious symbols in public service roles. The recent actions of both Ford and Legault reignited the debate over the notwithstanding clause, upon which current scholarship is dominated by discussions of balance of power between the legislative and judicial branches. In this paper, I argue that the current scholarship that focuses primarily on the relationship between the courts and legislatures, overlooks the threat the notwithstanding clause poses to constitutional minority rights protections. Ford’s threat and Legault’s use of the notwithstanding clause reveal the ways in which minority rights are uniquely vulnerable to the current Canadian constitutional structure and must be further examined