Great article as usual from @DoubleAspect. Some very persuasive points, though I disagree with the "I told you so" narrative. The sky is not falling on Canadian liberties. Rather, we are seeing legislatures re-asserting their proper constitutional role. https://twitter.com/DoubleAspect/status/1199025186676379649

You will get no argument from me that the NWC should only be invoked after a court has found a Charter infringement. To say that the law continues to operate notwithstanding s.2 suggests that s.2 would protect the right of anti-vaxxers to refuse vaccination.

But a court could very well conclude that public health is a reasonable limit upon any conscience right engaged. So at this stage the govt is saying 'notwithstanding something that may not actually conflict with our law.'

The govt may be concerned about an interim injunction being sought, but it could always re-enact the law "notwithstanding" the Charter if one were granted. More likely, this is a political calculus.

On the other hand, the preemptive invocation should not preclude a Charter challenge. And so we may ultimately end up in the same place.

See @GregoireWebber et al's great article on this https://policyoptions.irpp.org/magazines/may-2019/faulty-wisdom-notwithstanding-clause/

More substantively, this seems to be exactly what framers had in mind when they incorporated the NWC. The NB govt is not running roughshod over rights. Its position is effectively that conscience rights cannot be interpreted so broadly as to endanger the public.

It's a reasonable position, though as I said above, a court may very well have reached the same conclusion (and may yet reach this conclusion in future litigation).

Overall, this is exactly how our constitutional order is designed to function. The enactment of the Charter brought the judiciary into the domain of individual rights, but without excluding the legislatures, which had previously enjoyed a near-monopoly.

The clause is still invoked a minority of instances, so in practice the courts usually have the last word. And if the govt fails to persuasively articulate its position in the face of an adverse court decision, then it will be hard-pressed to justify its decision to the people.

The sunset provision in s33 ensures that the invocation must be renewed every 5 years. That will ensure that this remains a political issue. If the people of NB believe their govt has disrespected the Charter, the obvious remedy is the ballot box.