After ignoring the notwithstanding clause for nearly forty years, the Ontario government has recently changed tack, starting with its (successful) attempt to restructure Toronto City Council during a municipal election in 2018. Although a Court of Appeal decision rendered the invocation of section 33 unnecessary in that instance, the Ford government's readiness to hit the notwithstanding button was the beginning of a (now) clear attitudinal shift. Subsequent years brought two actual invocations -- one of which was withdrawn after intense public backlash -- and, more recently, murmurings about the possibility of a fresh invocation to shore up governmental powers to clear homeless encampments. For a survey of these developments and the constitutional questions they raise, we talked to two Ontario-based lawyers: Marion Sandilands (Conway Litigation) and Kris Kinsinger (SV Law).

In this first episode, we talk to Professor Eric Adams (University of Alberta) about the history of, thinking behind, and debates surrounding the notwithstanding clause. Professor Adams provides an overview of how the clause works, walks us through the various limits that are baked into it, and tells us why Western provincial premiers on different sides of the political aisle argued for its inclusion in the Charter. He also talks about why we're seeing an uptick in recourse to the clause, and whether this is connected to global political trends like the rise of populism.