| For those that aren't up on their Canadian law and wondering what the "notwithstanding clause" is-- The notwithstanding clause allows a government to make a law "notwithstanding" parts of our Charter of Rights and Freedoms. The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms. That law now does not violate the Charter, however it is time limited to 5 years, which is the maximum length that parliament can remain in power without an election at which point it would need to be renewed. The main things that cannot be overridden this way are our right to vote, that legislative assemblies must be re-elected at most every five years, that legislatures must sit every year, and that we have the right to move within or enter and leave Canada. The original idea was that this provided a balance against the judiciary. Even if the court were to declare something violated our rights, the legislature could just say "okay, we acknowledge that and pass it anyway". The primary balance against this being abused is simply that it would be unprecedented and everyone's scared to touch the "nuclear" button. The federal government has never invoked this clause. The only reason I can see to "not mention the notwithstanding clause" is because it directly contradicts the idea of the Canadian Supreme Court being the most powerful in the world. Except in a handful of very specific situations, their power is to declare something unconstitutional or against our rights at which point the legislature can simply shout "NO U" and it's in force anyway. |
IANAL and not sure how the implied bill of rights works in the modern context, but historically laws restricting the freedom of the press have been struck down even without the charter
E.g. https://en.wikipedia.org/wiki/Reference_Re_Alberta_Statutes
However, The main thing i was trying to say though was simply that the rules around the notwithstanding clause are really clear. I think the original poster was trying to say is that what is constitutional can be ambigious, but the notwithstanding clause doesn't really contribute to that as it is pretty unambigious in how it works.