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this post was submitted on 28 Sep 2023
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Actually, withholding Assent is the circuit breaker. The NWC is a mechanism to ensure that parliament makes the law, not judges. A judge may have a perfectly reason for making their verdict, and it totally makes sense to do so by a good number of the populous, but parliament is in charge and they're allowed to set the rules.
If they have to suspend the rules to make the rules, what does that mean?
Technically, what it's the parliament saying "this is the law, no matter what anyone else thinks of it." It's not suspension of law - an equal legal branch forming government is a feature of the United States. Here, like a lot of Westminster Parliamentary style governments, democracy is supreme to any rise of a kritarchy.
Except that the Notwithstanding clause literally suspends part of the charter of rights and freedoms in order to pass a law that the government deems more important than citizens’ rights, like in war time, or during a pandemic (which they didn’t even use the clause for), not to push through right wing identity politics that have been deemed unconstitutional.
Well, depends. It certainly can be used in a variety of situations. The basis of the notwithstanding clause doesn't require that rights be set aside, it can be used to identify that an interpretation of rights is incorrect. For instance, where rights have been determined in the outcome of a case that isn't deliberately mentioned in the relevant act, it would be perfectly acceptable for parliament to use the notwithstanding clause to say "no, that's not what is written in the law we wrote." The 'threat' of using the notwithstanding cause in Ontario recently in the Ford government is a good example of that. They ended up not needing it because the courts determined that the original ruling was probably 'wrong' before it was needed...
In this case, gender expression is a right that has been established repeatedly despite it not being explicitly mentioned in Section 15. (1) of the Canadian Charter of Rights and Freedom (the basis is that gender expression is related to the sex of the individual). So, it 'technically' could be used correctly in this situation, but they are certainly assholes for fighting people for expressing their gender when it has been firmly set outside of the language.