Saturday, September 15, 2018

Things They Should Invent: notwithstanding clause penalty box

The notwithstanding clause enables provincial and territorial legislatures to override Canadians' Charter rights and freedoms.

This is a big deal, so there should be some kind of dissuasive measure to counterbalance it. Improper use of the notwithstanding clause can be an abuse of power - placing the rights and freedoms of Canadians at the mercy of the whims of those in power - so the dissuasive measure should require those who invoke the clause to place their power at the mercy of the whims of the people whose rights and freedoms they are overriding.

A couple of preliminary ideas, to inspire further brainstorming:

- When the notwithstanding clause is used, an election must be called within a fairly brief period of time.  (Three months? Six months? One year?)
-MPPs who vote to use the notwithstanding clause are not permitted to run in the next election (at any level of government). They can run in the one after that.

The flaw of both these ideas is they suggest rights are subject to majority rule - they only incentivize politicians to make sure the majority agrees with them, which could still create a situation where the majority cheers for infringing upon the rights of the minority.

So feel free to use this as a starting point and improve upon this, to come up with something that disincentivizes use of the notwithstanding clause when it's not in the people's best interest, while incentivizing its use when it is in the people's best interest.

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