Saskatchewan and the notwithstanding clause explained

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A provincial government is again threatening to invoke the Constitution's notwithstanding clause — this time over an education policy change that a court has tried to pause.

On Friday, Moe repeated his promise to recall the province's legislature on October 10 to pass legislation ensuring the policy is implemented.

The clause can only override certain sections of the charter — section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights. It can't be used to override democratic rights. "A number of premiers argued that there should be ... a sort of escape hatch from certain rights in the charter."

"It was intended at that time to be used in the most unusual of circumstances," Wally Oppal, a former B.C. attorney general and justice of both the provincial Supreme Court and the Court of Appeal, said last fall.

 

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