Open Collections

Salamatian, Siavash

The individual rights override provision (the notwithstanding clause) included in the 1982, Canadian Charter of Rights and Freedoms had traditionally been viewed as a mechanism that outside of Quebec was too politically costly to use. This understanding of the clause has rapidly shifted in recent years with provincial leaders having musings about a more frequent use of the clause. This paper employs a mixed-methods approach in its study. I first measured public opinion since 1988 on who Canadians believe should adjudicate Charter disputes. I then employ an original theoretical table to compare the discourse of the drafters of the 1982 Constitution with the current provincial leaders who have used the clause to track changes on how permissive elites believe a use of the notwithstanding clause should be and for what uses it can be invoked. Finally, to empirically test whether a ‘federalism’ use of the clause is actually reflected in public opinion, I identified several invocations of the clause and tested provincial sentiments towards those particular issues in comparison to the national values. Ultimately, I find that there is increasing trust in the provinces over the federal government; elite discourse suggests that there is now a more permissive understanding of using the clause for federalism purposes; and when the clause is invoked there is a difference in preferences between that province and the rest of Canada. However, the findings of the last theory may not be entirely due to provincial differences. The key contribution of this research is to look at the notwithstanding clause as a mechanism that is being used to express provincial differences in the federation, rather than solely a political choice to avoid accountability.

Text

University of British Columbia. POLI 492

Vancouver : University of British Columbia Library

10.14288/1.0443577

Arts, Faculty of; Political Science, Department of

Undergraduate

DSpace