The Briefing Note to the Minister
(1) Issue (50 words)
The impact of the emerging trend characterized by the inclination of both the provincial and
federal governments in the suspensions of constitutional rights via the use of the "Emergencies
Act" and "Notwithstanding Clause" on public trust and economic growth in institutions across
Canada.
(2) Background (150 words)
The Canadian Charter of Rights and Freedoms, adopted in 1982, was a legal framework whose
rationale was to ensure the protection of the fundamental rights and freedoms of all Canadians.
The intention was to ensure that each citizen and resident was sufficiently protected at any given
moment. However, a new development occurred with the inclusion of the "Notwithstanding
Clause," commonly known as Section 33, that permitted the governments at both the federal and
provisional levels to override these rights for up to 5 years. It is a development that led to
situation of the increased concerns on the erosion of the civil liberties and the destabilizing
effects that it had on the country as a whole.
Recent years have been characterised by the situations in which the provisional governments led
by those of Ontario and Quebec that have shown their increased determination in invoking the
"Notwithstanding Clause" in ways that have paved the way for the adoption and implementation
of the policies meant to infringe on the rights like the freedom of association, press and religion.
It is a trend that has led to the numerous debates concerning the long-term implications for the
democratic institutions across Canada as well as the public trust associated with them.
There has also been the case of the use of the "Emergencies Act" by the federal government as it
was the case in 2022 meant to dispense the "Freedom Convoy" protest across Ottawa. It is a
development that has led to the increased concerns on the potential overreach and the idea of
focusing the identified groups. Analysis of the whole Act indicates that it is the legal framework
that is meant to operate in ways that override the local and provincial laws. The implication in
that regard is that it raises lots of questions concerning the situation of the balance of power and
the avenues associated with the increase potential for abuse.
(3) Current Status (50 words)
There exists a recent court ruling in which the use of the Emergencies Act by the federal
government has been regarded as being unjustified. It is a ruling that has paved the way for the
heightened debates on the limits of the government powers in the contexts and times of the
crises. It is noted that even though the federal government is determined to appeal the decision,
the case is expected to remain in the courts for a long period.
(4) Considerations (450 words)
(1) Economic Impact: The new developments concerning the invoking of the Notwithstanding
Clause and the Emergencies Act have led to the erosion of the public trust in the key institutions
that are characterised with the immense economic consequences led by the capital flight, reduced
investments and the decreased productivity. Citizens have started realizing that their rights across
Canada can be arbitrarily suspended thus leading to the situations of instability and
unpredictability that hinders economic growth and prosperity.
(2) Institutional Credibility: The continuous use of the legal loopholes facilitated by the
"Notwithstanding Clause" and the "Emergencies Act" have the potential of undermining both the
provincial and federal governments as the custodians of the constitutional order and the rule of
law. It is a situation that can facilitate the avenues in which there can be the breakdown in the
principal-agent relationships between the elected representatives and the members of the public.
In such cases, there may arise situations in which the effectiveness of policymaking may reduce
to the extent of the increased risks of social and political instabilities.
(3) Opportunity Costs: Resources and attention have to be devoted to the defense of such
extraordinary powers exhibited by the provincial and federal governments. In such cases, the
pressing social and economic needs are denied the resources since they have to be budgeted for
the implementation of the decisions by the governments. It is evident that the litigation and
reviews necessary for the implementation of the "Emergencies Act" tends to divert the resources
from the various pressing and productive activity thus paving the way for the creation of the
opportunity costs that limit the extents of economic growth.
(4) Unequal Application: Concerns can be raised concerning the application of "Notwithstanding
Clause" and the "Emergencies Act" where the aspects of discrimination are brought on board.
The discrimination can be in the form of applying the laws in ways that target specific groups or
even the political opponents. Such cases can ensure the further erosion of the public trust in the
institutions thus leading to the creation of the impression and perception of unfairness that are
linked to the negative economic consequences that include decreased investments and business
activities across the affected sectors and regions.
(5) Trade-offs: Instances may arise where the application of "Notwithstanding Clause" and the
"Emergencies Act" may be justified in the address to the various genuine threats to the national
security and public safety. However, there arises a challenge in balancing between the
protections of the individual rights and the preservation of the integrity and stability of the
democratic intuitions across Canada that are essential in the facilitation of the long-term
economic growth and development.
(5) Conclusion (100 words)
The provincial and federal governments have demonstrated the growing inclination towards the
suspension of the constitutional rights via the application of the "Notwithstanding Clause" and
the "Emergencies Act" which are the decisions that are associated with the significant economic
implications. Even though there may exist genuine reasons for invoking such extraordinary
measures, instances of continuous or repeated applications may undermine the public trust in
various leading institutions and the rule of law, thus having negative consequences on economic
growth and stability.
In my professional capacity as a senior economist, I hereby recommend the close monitoring of
the legal and political developments in ways that can ensure the engagements in the constructive
dialogue that brings on board all the stakeholders. The rationale is to advocate for the policies
meant to balance for the need for the protection of the individual rights and the preservation of
the effectiveness and credibility of the Canadian constitutional institutions. Efforts have to be
made to ensure the strong maintenance of the trusted system of government that is going to be
crucial for the facilitation of the sustained economic prosperity.
